Denson v. State , 107 Tex. Crim. 649 ( 1927 )

Appellant insists that the ruling of the trial court and of this court on the original hearing offends against Article 1258, P. C., 1925, which reads thus:

"Where a defendant accused of murder seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made. * * * In every instance where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased. Such evidence shall extend only to whether thedeceased was a man of violent or dangerous character, or a manof kind and inoffensive disposition, or whether he was such aperson as might reasonably be expected to execute a threatmade."

The statute has been uniformly construed so that when one accused of homicide interposes self-defense as a justification and introduces evidence to the effect that he had been informed that his life has been threatened by the deceased, the state may meet such defensive testimony by evidence touching the character of the deceased. On the trial of the present case, the situation was such as opened the way for the state to invoke the operation of the statute mentioned. The privilege of the state, however, would extend no further than the limiting clause of the statute underscored above. See Plasters v. State, 1 Tex.Crim. App. 673, page 683. Expressions in Berry v. State, 73 Tex.Crim. Rep.; Ghent v. State, 76 Tex.Crim. Rep.; Alexander v. State, 95 Tex.Crim. Rep., are distinguished by the evidence under consideration in the cases mentioned and are not to be taken as ignoring the terms of the statute. In both the Ghent case and the Berry case, supra, the testimony to the effect that the deceased bore the reputation of a "law-abiding citizen" was justified upon the evidence introduced by the accused other than specific threats to take his life. In Richardson's case, 253 S.W. 277, the language challenged was "that the reputation of the deceased forpeace and quietude was good." The court regarded the language mentioned, namely, "peace and quietude" as synonymous in substance with "kind and inoffensive." From the opinion we quote:

"The language in which the proof was made was that the general reputation of the deceased for peace and quietude was good. The question was framed in language often found approved in the reports. One who is of a quiet and peaceful disposition is not of a violent and dangerous one. One is peaceable who isnot quarrelsome. Webster's Dict. A peaceful man is one who isquiet and harmless in his behavior. Cyclopedic Dict., page 678."

In the present instance the appellant having introduced evidence of communicated threats upon the part of the deceased, the state sought to introduce evidence supporting the character of the deceased. The bill of exceptions contains the following:

"BE IT REMEMBERED, that upon the trial of the above numbered and styled cause the defendant proved communicated threats of the deceased to take his life but that defendant did not put inissue the general reputation of deceased, and that thereafter and after the defendant had rested, the state, over defendant's objections, was permitted to prove by the witness Ed McArthur as follows:

" 'I was acquainted with Edgar Brawley during his lifetime in Spur. I was acquainted with the general reputation of Edgar Brawley, before he was killed, as being a peaceful, law-abiding citizen, before he was killed. His reputation was good.'

"Defendant objected to said questions and answers and said evidence for the reasons that the defendant had not put inissue the general reputation of deceased and that hisreputation as a law-abiding citizen was incompetent andprejudicial evidence."

It is to be noted that the question propounded is not set out in the bill but that the answer alone appears. The objection urged was that italicized above, levelled against the question and answer. In the absence of a recital in the bill to the contrary, this court must assume that the question was a proper one and calculated to impress the trial court with the view that the appellant contended that there was no evidence beforethe jury justifying proof touching the character of thedeceased, and that it was upon that phase of the matter and notupon the mere form of the answer that the trial court wascalled upon to rule. In so far as the answer declared that the deceased bore the reputation of a "peaceful" man, it was in line with the statute and the terms of the objection that the evidence was "incompetent and prejudicial" was not adequate to advise the court of the particular complaint of the answer that is now under consideration. Any language in the original opinion or in the other opinions to which reference has been made which might be construed to mean that in a case like the present the character of the deceased might be attacked upon the ground that he was not a "law-abiding citizen" or supported upon such ground in particulars variant from the subject covered by the statute mentioned (Art. 1258, P. C., 1925) is withdrawn.

Viewing the bill of exceptions in the light of the present record, we are impressed with the view that no error is shown, certainly none which would justify this court in ordering a reversal of the judgment.

Upon the other points presented in the motion no further discussion is deemed necessary or desirable than that which is embraced in the original opinion.

The motion for rehearing is overruled.

Overruled.