Treadway v. State , 65 Tex. Crim. 208 ( 1912 )

In a very voluminous opinion my brethren have affirmed the judgment in this case. I am of opinion they are wrong in more questions than one in their opinion of affirmance. I desire, however, to especially enter my non-concurrence in writing to all of that portion of the opinion which holds that the trial court did not err in failing and refusing to submit for the consideration of the jury the issue of manslaughter. Under the law as has been heretofore announced in this State, that issue is clearly raised and demanded by the evidence found in the record now on file in this court. Counsel for the appellant have filed a very able and rather an exhaustive brief, citing authorities, in which is presented this phase of the appeal in such satisfactory manner that I shall adopt it as my dissenting opinion on this question. The statement in the brief of the principle and questions involved and supported by the decisions of this State is so clear and forceful that I deem it unnecessary to undertake to add to what is therein said or to reiterate same in language of my own. I shall, therefore, adopt their argument as my reasons for dissenting. This brief was prepared by Messrs. King King, V.E. Middlebrook, and Anderson Davis, of counsel for appellant. That portion of their brief adopted reads as follows:

"A casual study of the facts; an investigation of this record, and a careful review of the authorities has convinced us beyond a doubt that the court erred in failing to submit the issue of manslaughter, and has satisfied us that the cases of Lentz v. State, 48 Tex.Crim. Rep.; Jirou v. State, 53 Tex. Crim. 18; Shelton v. State, 54 Tex.Crim. Rep., are clearly distinguishable from and not in point in the instant case, when fairly construed.

"It is well settled that if there is any evidence tending, though slight, to establish a defense, the defendant is entitled to a charge directly upon that point, no matter what view the court may entertain of the weight and value of the testimony. That manslaughter is a defense to murder is equally well settled, and, if it is an issue, its omission in the charge is harmful to a defendant, though the jury are charged to acquit if they find the facts to be as claimed by defendant, because a jury might not be — and usually is not — willing to acquit a defendant responsible in some degree, and a verdict of murder is rendered instead of one for manslaughter, where the verdict might be otherwise had they been permitted to consider manslaughter.

"It has been uniformly held that a defendant is entitled to a charge on the testimony introduced, and that it is immaterial from what source it comes: whether from the State or defendant, or from parts of both. Sowell v. State, 32 Tex.Crim. Rep.; Harris v. State, 51 Tex.Crim. Rep.; Keith v. State, 50 Tex. Crim. 63, 94 S.W. Rep., 1044; McComas v. State, 75 S.W. Rep., 533; Lewis v. State, 48 Tex.Crim. Rep., 89 S.W. Rep., 1073; Brownfield v. State, 25 S.W. Rep., 1120; Bonner v. State, 29 Texas Crim. App., 223; Green v. State, 58 Tex. Crim. 428; Lara v. State, 48 Tex.Crim. Rep., and many others.

"The sheer fact that there is proof of threats made by deceased will not of itself raise the issue of manslaughter. If in addition to proof of threats made by deceased, and which were known to defendant prior to the homicide, the threatened or actual attack was so immediate, imminent and pressing as that, if true, the homicide was necessarily in perfect self-defense, so that the issue is simply murder or perfect self-defense, the issue of manslaughter is not in the case, and this is all that the cases of Jirou and Shelton hold. In each of those cases the parties were so close that there was not, from any source, the issue or theory of whether defendant acted with undueprecipitation against the demonstration of his adversary, or that he was about to be made to abandon a lawful occupation, and therein is the distinction between the Jirou and Shelton cases and the instant case.

"Whenever in connection with proof of threats known to defendant at the time of the homicide there is evidence of an overt act on the part of deceased and any evidence from which the jury could conclude that defendant acted with undue haste against the demonstration of his adversary, the issue of manslaughter is in the case. The jury might conclude that he acted too quick, that deceased was too far away to have caused a reasonable apprehension of death or serious bodily injury, and that in connection with the proof of communicated threats and the other circumstances of the case, such as, in this case, the fact that defendant was where he had a right to be, that he had been frequently disturbed in his work, and had been notified not to work the right of way which separated the field of deceased, the mind of defendant became excited beyond cool reflection, and so while not justifiable he might be only guilty of manslaughter. This proposition is fully supported by the following cases: Rutherford v. State, 15 Texas Crim. App., 236; Bonner v. State, 29 Texas Crim. App., 223; Cooper v. State, 49 Tex. Crim. 28; Rice v. State, 51 Tex.Crim. Rep.; Floyd v. State,52 Tex. Crim. 103; Casey v. State, 54 Tex.Crim. Rep.; Lee v. State, 54 Tex.Crim. Rep.; Williams v. State,61 Tex. Crim. 356, 136 S.W. Rep., 771; Swain v. State,48 Tex. Crim. 98, and Franklin v. State, 48 S.W. Rep., 178.

"In the instant case, appellant testified that deceased was forty yards away at the time he fired the fatal shot. That deceased refused to stop when requested. Appellant had been ordered by his superior to fix the right of way and railroad track running through and separating the field of deceased, and was where he had the legal right to be. Deceased had declared that defendant should not work the right of way through his field, and this was known to defendant. Deceased had declared that he could not get on defendant with his gun and that he would have to resort to other means and this was known to defendant.

"It ought to be remembered that the conditions or circumstances which may constitute adequate cause are not restricted to those named in the statute as adequate cause; other causes may exist, and if there is evidence which supports the theory of adequate cause, the court is not the judge of its probable truth, but should leave it to the jury. Brown v. State, 38 Tex. 486; Johnson v. State, 43 Tex. 612; West v. State, 2 Texas Crim. App., 460; Guffee v. State, 8 Texas Crim. App., 187; Sterling v. State, 15 Texas Crim. App., 249; Williams v. State, 15 Texas Crim. App., 617; Wadlington v. State, 19 Texas Crim. App., 266; Childers v. State, 33 Tex.Crim. Rep.; Rice v. State,51 Tex. Crim. 255.

"A sudden meeting whereby defendant became incapable of cool reflection and on insufficient grounds became apprehensive of death or serious bodily injury may in connection with previously communicated threats raise the issue of manslaughter. Howard v. State, 23 Texas Crim. App., 279; Swain v. State, 48 Tex. Crim. 98; Yancy v. State, 48 Tex.Crim. Rep..

"It has also been held by this court that an act standing alone may not be a sufficient provocation, but may be ample when it is one of a series of similar acts, or when it has been preceded by an insolent and aggravated course of conduct, whether similar or not to the act committed at the time of the homicide. Wadlington v. State, 19 Texas Crim. App., 266; Johnson v. State, 22 Texas Crim. App., 206; Lienpo v. State, 28 Texas Crim. App., 179; Bracken v. State, 29 Texas Crim. App., 362; Baltrip v. State, 30 Texas Crim. App., 545; Adams v. State, 42 Tex.Crim. Rep.. In this case it appears from the evidence that deceased had determined that appellant should not perform his duty in working the right of way dividing the field of deceased, and that deceased had been guilty of a series of overt acts and an aggravated course of conduct well calculated to arouse apprehension and fear in the mind of appellant, and if at the time of the homicide appellant thought this conduct was to be repeated it was for the jury to say whether this was or was not a `condition or circumstance' such as would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. Childers v. State, 33 Tex.Crim. Rep.; Gilcrease v. State, 33 Tex.Crim. Rep., and especially so when considered with reference to the distance between the parties and the extent of the demonstration testified by appellant, and in the light of the threats known to appellant and all other circumstances of the case.

"The dividing line between murder in the second degree and manslaughter may be often shadowy and indistinct, but in case of doubt, the doubt should be resolved in favor of appellant, and the issue of manslaughter submitted. Halbert v. State, 3 Texas Crim. App., 656; Arnwine v. State, 49 Tex.Crim. Rep.. This is in strict conformity to the basic principle of our law, that the accused is presumed innocent until proved guilty beyond a reasonable doubt. All presumptions are legally in aid of innocence until guilt is shown. Manslaughter means innocence of murder. A doubt on facts at this point means doubt of law and requires the charge on manslaughter.

"If there is evidence which, however weak or inconclusive it may seem to the court, tends to prove facts from which the jury may deduce a finding of manslaughter, it is error to fail to charge on that issue. See authorities cited in Branch's Criminal Law, sec. 504, page 322.

"The distinction here has been almost uniformly recognized by the decisions of this court beginning with the Williams case, 2 Texas Crim. App., 287. For other authorities see Branch's Criminal Law, sec. 505. The evidence shows there are facts in this record from which the jury might have deduced a finding of manslaughter; that they could find that appellant acted withundue precipitation against the movements of deceased; that he did not wait long enough; that the circumstances surrounding the case and the excited way in which appellant spoke, the deceased's continuing to advance in the light of the previous actions and threats, and the change of threats of deceased may have produced such a state of mind as rendered him incapable of cool reflection, and may have, if permitted, not found him guilty of anything higher than manslaughter.

"In the Lentz case, 48 Tex.Crim. Rep., cited by the State, as well as in the Jirou and Shelton cases, the parties were soclose, and there was such demonstration as that, if true, the defendants in those cases would have had a perfect right of self-defense, and would have, if they had acted as claimed, been acting in perfect self-defense, that there was no other evidence of adequate cause either singly or in connection with other facts. In neither of those cases were the parties so far apart as in the instant case; in neither of those cases was there a course of insolent and aggravating course of conduct in connection with an apprehension that it was about to be repeated at the time of the homicide; in neither of those cases was there such a lack of coolness and deliberation manifested, or proof of facts calculated to disturb the mind, and in neither of those cases was there as little proof of actual danger as in this case; in neither of those cases was there an issue that defendant may have acted too hastily and with undue precipitation with regard to the demonstration or attack of his adversary as in this case.

"The theories of a case are not limited by the testimony of a defendant. Bonner v. State, 29 Texas Crim. App., 230; Lee v. State, 54 Tex.Crim. Rep.; Green v. State, 58 Tex. Crim. 428. That the same testimony often does raise the issue of both manslaughter and self-defense is illustrated by many of the cases — though in the instant case there are many facts outside the testimony of appellant going not only to raise, but to illustrate and intensify the issue of manslaughter — and as said by Judge Ramsey in the Burnett case, 53 Tex.Crim. Rep.: `It is true the same testimony raises the issue of self-defense, but there is testimony in the record from which the jury might have believed that appellant was not justified either, under the doctrine of actual or apparent danger, in taking the life of deceased and yet would have been fully justified in holding that his mind was in such condition as to make the killing manslaughter.'

"Lee v. State, 54 Tex.Crim. Rep.; Williams v. State,61 Tex. Crim. 356, 136 S.W. Rep., 771; Nelson v. State,48 Tex. Crim. 274; Miller v. State, 52 Tex.Crim. Rep.; (Fuller v. State, 95 S.W. Rep., 1039); Harris v. State,48 Tex. Crim. 627.

"So there are facts and circumstances from which the jury might conclude that appellant, while not justified, acted too quickly upon the movements of deceased, when viewed in the light of all the previous threats and demonstrations, his open enmity and hostility to appellant, which while in a measure, might be justified from the standpoint of deceased, yet did not in any way lessen the rights of appellant, viewed from his standpoint.Appellant was on trial and not deceased, a fact which is so oftenlost sight of by trial judges.

"The criterion is not what the judge who tried the case may have believed as to the facts presenting the phase of manslaughter, but the question is, was there sufficient evidence to have required a charge on that subject? Arnwine v. State,49 Tex. Crim. 6. Here there is not only threats known to appellant at the time of the homicide, but instances of insolent, uncalled for and aggravating courses of conduct prior to the homicide, an effort and purpose to prevent appellant from doing what he had a right to do, from working where he had a right and where it was his duty to work, coupled with an advance at some distance, and a refusal to stop when requested, coupled with the threat of deceased only the day before to resort to other means than shotgun, and coupled with a hostile demonstration at the time of the homicide at such a distance from appellant as that the jury might reasonably conclude that appellant acted with undue haste in shooting, and taken in connection with the requests of appellant for deceased to stop his advance, the words he used in making the request, and all the other circumstances of the case, it seems clear that the jury should have been given a chance to say whether or not this was manslaughter, and not be restricted to a cold issue of whether it was murder or self-defense, especially when, in the light of all the facts there was evidence from which they might have deduced a finding of manslaughter.

"The failure of the court to charge upon manslaughter, if no other error is presented by the record, under the authorities of this court above cited, clearly entitled appellant to a reversal of this judgment."

I therefore respectfully enter my dissent.