Alexander v. State , 63 Tex. Crim. 102 ( 1911 )

Being unable to agree with my brethren in overruling the motion for rehearing, I wish to make a few observations in addition to what I had to say in the dissenting opinion heretofore filed.

1. This case has been affirmed upon the theory that the majority of this court do not believe the evidence suggested the issue of manslaughter; second, that it was not necessary to charge the law applicable to threats made by both of the deceased parties when they were acting together in their demonstrations against appellant, and, third, that the court did not err in charging the presumption of law from the use of a deadly weapon as provided by article 676 of the Penal Code. Appellant may be guilty of murder in the first degree as found by the jury. With this I have no concern. The weight to be given the evidence and the credibility of the witnesses is confided by our law to the jury and they are made the exclusive judges of both the weight of the evidence and the credibility of the witnesses. This has never been held, however, to relieve the trial court from giving a proper charge on the issues raised by the testimony. Because that court or this court may believe that the accused is guilty of murder in the first degree would not excuse the trial court from charging on the other issues, nor would it relieve this court of discharging its duty in requiring the trial court to properly submit the law applicable to all the issues suggested by the testimony. The trial court in part discharged his duty by applying the law of manslaughter because raised by the facts, but limited the consideration of the jury to the acts only of one of the deceased parties. The evidence is absolutely conclusive that if there was a provocation as to one of the parties it existed alike as to both. The evidence along these lines is sufficiently set out in the original dissenting opinion. Many cases are cited by my brethren and quotations made from opinions written by this court to the effect that where the issues are sharply defined on one side as murder and on the other as self-defense, only that it is not necessary to instruct the jury with reference to the law of manslaughter. That might be stated as axiomatic. If there is no evidence suggesting the issue of manslaughter, of course, it would be wholly unnecessary to charge the law applicable to that question. Quotations from opinions written by myself are given a certain degree of prominence by my brethren for which I express my high appreciation, but they have wrongly applied those decisions. The trouble with the majority opinion on rehearing is that the cited cases do not apply to the facts of this case and only apply to that character of case where the facts exclude manslaughter and only show murder upon one side and self-defense on the other. Those decisions are correct when applied to cases where the evidence excludes manslaughter. The trouble here is, my brethren bluntly cast aside all the evidence raising or suggesting the issue of manslaughter and then apply the rule laid down in the quoted decisions in which there was no evidence originally suggesting manslaughter. If there was no evidence in this record raising or suggesting manslaughter, there would be no cause for dissent in regard to that question. The trial judge believed, and justly so, that there was evidence requiring a charge on the issue of manslaughter and gave a partial one, limiting it to only one of the parties. I do not care here to repeat the evidence. It is sufficiently set out in my original dissent, though not as fully as might have been done from the statement of facts.

2. That appellant was entitled to a change on self-defense is conceded, both as to the law of apparent danger and the law of threats. The trial court gave a charge on both issues, but in regard to threats he limited appellant's right of self-defense to such threats as were made by one of the deceased parties, Wagnon. Threats were made by both of the deceased parties; they were acting together at the time of the homicide; they both made demonstrations and had prepared themselves fully to execute those threats and this was clearly shown by the State's evidence as well as by the defendant's. I have always understood it to be the law, and the decisions verify my judgment without exception, that the accused has as complete a right of self-defense against both parties as against either when they are acting together against him, viewed from the evidence of threats. This is true, although the court may have given a charge on self-defense from the standpoint of apparent or real danger. This court has always held that where threats become an issue in the homicide case and relied upon as a defensive matter under the statute, that a charge applicable to such condition must be given, and it is further held as the law that where the court gave a charge on real or apparent danger, it is not sufficient to cover the issue of threats. It is made prominent in this record by all the evidence touching the question, that both parties had made threats to take the life of appellant. The State's evidence clearly showed that the deceased parties had prepared themselves to execute these threats. The State's evidence makes this apparent beyond controversy. That both of them had, within a few hundred yards of where the tragedy occurred, prepared to use their weapons, is shown by the main State's witness, Chadwick; that they made demonstrations is testified by appellant, and sufficiently so to raise the question by Chadwick's evidence. The deceased, Wagnon, after being shot and killed was found in the wagon with his gun so firmly grasped and held in his hand that it had to be prized or forced out of his hands. The other deceased party had his gun across his lap and also made demonstrations, shown by the facts. This evidence clearly raised the issue of threats and demonstrations to execute the threats on the part of both of the deceased parties at the time they were shot by appellant. Under this state of case, appellant was clearly entitled to a charge on the law of threats as applied to both deceased parties. It was not given. Exception was properly taken and the matter timely presented, but my brethren have affirmed the judgment and held there was no error. This is neither right nor legal. If anything has been settled in Texas, beyond controversy, it is that when an accused is placed on trial for life or liberty, he has a legal right to a charge on all the facts introduced which presents the case favorably to him. It is not right nor legal to confine him in his case to a partial presentation of the law.

3. The court gave a general charge on self-defense viewed from the standpoint of apparent danger, but did not instruct the jury on the presumption of law provided by article 676 of the Penal Code. That article reads as follows: "When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapons or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury." My brethren hold that the charge on apparent danger from the acts or words, coupled with the acts of the person killed, if those acts and words showed it was the purpose and intent of such person to kill, the same as article 676 just quoted, was and is sufficiently given under article 675 to cover the requirement of article 676. The law of apparent danger under article 675 has never heretofore — so far as I am aware — been confounded with the law as laid down in article 676. Under article 675, if it appears to the accused that the deceased by his acts or words or both, intended to kill, he had the right to defend if he understood the facts to show that his life was in danger or if he were in danger of serious bodily injury. This covers apparent danger and article 679 of the Penal Code says that he would be justified if these acts produced a reasonable expectation or fear of death or some serious bodily injury. Whenever those circumstances occur and the accused killed, he is justified upon the law of apparent danger, but article 676 says that where deceased uses weapons or means which were calculated to produce either murder, maiming, disfiguring or castration, the law absolutely and conclusively presumes that the person using them designed to inflict the injury. There is a wide distinction under these statutes between a conclusion to be reached from the viewpoint of appellant that his life was in danger, and the legal presumption favorable to the defendant, in addition to that under apparent danger that the law presumes conclusively that the attacking party intended to kill or inflict serious bodily injury. How these statutes can be confounded or upon what reasoning they can be held to mean the same thing, is not clear to the mind of the writer. These questions underwent a thorough investigation and decision in Kendall v. State, 8 Texas Crim. App., 569, and the doctrine was there laid down that when the homicide was done to prevent, murder, maiming, disfiguring, or castration, and the weapons or means used by the aggressor was calculated to effect his purpose, this article makes it an absolute presumption of law that his design was to inflict the injury indicated. It is further held that this legal presumption is imperative to juries as well as to courts, and, when the facts called for the charge, it must be given to the jury. It was also held in Jones v. State, 17 Texas Crim. App., 602, and Cochran v. State, 28 Texas Crim. App., 422, that where the weapon and the manner of its use were such as calculated to produce either death or serious bodily injury, then the law presumes that the deceased intended to murder or maim the defendant and the jury should have been so instructed in affirmative explicit terms. If there has been a decision to the contrary until the decision written in this case by my brethren, it has escaped my attention. There has been some little differences as to what it took to constitute a deadly weapon, but there has never been any difference in the court that if a deadly weapon was used that the legal presumption was conclusive on the jury and the court. In addition to Kendall case, supra, I collate the following cases: McMichael v. State, 49 Tex. Crim. 422,93 S.W. 723; Ward v. State, 30 Tex.Crim. Rep.; Hall v. State, 43 Tex.Crim. Rep., 66 S.W. Rep., 783; Scott v. State, 46 Tex.Crim. Rep., 81 S.W. Rep., 950; Clark v. State, 56 Tex.Crim. Rep., 120 S.W. Rep., 179. I make this quotation from the opinion in Clark v. State, supra, written by Judge Ramsey, when a member of this court:

"The court erred in not giving in charge to the jury the substance of article 676 of our Penal Code of 1895. This article is as follows: `When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapons or means used by the party attempting or committing such murder, maiming, disfiguring or castration, are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.' In this case the weapon used by White was a pistol used as a firearm. In respect to the use of a deadly weapon, it has been the uniform holding of this court, since the case of Kendall v. State, 8 Texas Crim. App., 569, that the court must give in charge to the jury, the substance of this article of our Penal Code. We have recently discussed this matter at great length in the case of Renow v. State, 56 Tex.Crim. Rep., 120 S.W. Rep., 174. See also Jones v. State, 17 Texas App., 602; King v. State, 13 Texas Crim. App., 277; Cochran v. State, 28 Texas Crim. App., 422; Ward v. State, 30 Texas Crim. App., 687; Yardley v. State, 50 Tex. Crim. 644, 123 Am. St. Rep., 869." In this particular case the two deceased parties were armed — one with a Winchester and the other a shotgun. If these were not deadly weapons, I do not know what it takes to constitute a deadly weapon. That it is shown in the record that they were attempting to use them is uncontroverted. If the statute, article 676, Penal Code, is ever worth anything to an accused party when he is on trial for his life, it occurs to me that the accused in this particular case was entitled to its full benefit. He has been convicted of murder in the first degree. My brethren say self-defense was in the case and so cogently that it excluded manslaughter, and yet they affirm this case and deny appellant the legal right of a charge on the plainly written statute which guarantees him unqualifiedly the right that the jury be told that if the parties were armed at the time and were seeking to use such arms and they were deadly, he had a right to have the jury instructed that the law presumed that they intended to kill him. The statute takes away any option from the jury and the court and makes it a conclusive presumption. This legal presumption does not arise under article 675 and was never held before to be suggested by article 675.

I therefore believe, however guilty the court may believe a man or however just the verdict of the jury may be, if the trial court has ignored favorable issues in instructing the jury in regard to the law of the case that might have brought about a more favorable result in his conviction, the error is reversible. I, therefore, enter my earnest protest against the affirmance of this judgment