Richardson v. State , 94 Tex. Crim. 616 ( 1923 )

Appellant was convicted in the District Court of Van Zandt County of murder, and his punishment fixed at thirty years in the penitentiary.

Serious complaint is made of the refusal of appellant's request that the jury be retired while the aged mother of appellant and deceased, a witness for the State, was being assisted to and from the witness stand, during the trial of this case. The matter is made the subject of a bill of exceptions in which it is made to appear that said witness was aged and infirm and that it was apparently necessary that she be assisted to and from the witness stand, and that in fact she was brought into the court-room and to the witness box and assisted in leaving same, by two deputy sheriffs. This court does not know how to properly appraise a complaint such as this. Necessarily large discretion is confided in trial courts in matters of procedure, and in order to call same into review by us on appeal, it seems universally held that there must be an affirmative showing of injury, or a flagrant abuse of the discretion of the lower court. We have been unable to find any authority holding upon the same or a similar state of facts that injury must be inferred from a refusal such as this. While the trial court might have well granted the request of appellant and thus avoided any possible claim of injury, we are not able to conclude that his refusal of such request was a violation of the rights of the appellant from which reversible error appears.

A number of witnesses for the State were permitted to testify over objection of appellant that the reputation of deceased for peace and quietude was good. All the bills of exception complaining of this matter will be considered together. The record before us shows proof of threats made by deceased, immediately preceding the homicide and also prior thereto. Appellant's witness Steele swore that just before the shooting occurred appellant asked deceased what he was doing at the house and that deceased replied, "I will show you what I am doing here," and that he went and procured and presented a pistol, and then called out to the mother of himself and appellant, "Move Ma, and I will show him what I am doing here." That in a minute or two appellant shot and killed deceased. Other witnesses, including Charles Jones, Alto Jones, one Marmar and Hon. N.A. Gentry, all testified to threats made by deceased at other times, no proof appearing of the communication of these prior threats. Appellant objected to the proof of the good reputation of deceased on the ground that it was immaterial, irrelevant and prejudicial and bore on no issue in the case, and that deceased had been away from the county on a prolonged absence until a few months prior to the homicide, and that the witnesses could not therefore have formed an opinion provable in court. The bill of exceptions as presented to the trial court contained the further ground of objection that there was no proof of communication of threats to appellant. The trial court refused to approve the bill with this statement in it, and appends thereto a qualification in which he states that no objection was offered on the ground that the threats had not been communicated.

That the deceased had only been back at his old home for a few months following a prolonged absence of several years, would not seem good ground for the rejection of testimony of witnesses who qualified that they knew his general reputation for being a peaceable, law-abiding citizen and that it was good, but would seem rather to go to the weight of such testimony. Objections that the testimony is immaterial and irrelevant, are too general. There are numerous decisions holding that this court will judge of the action of the trial court in rejecting or admitting testimony, from the standpoint of the objections made, and not from the standpoint of objections which might have been made but were not. Fluewellian v. State, 59 Tex.Crim. Rep., 128 S.W. Rep. 622; Ward v. State, 66 Tex. Crim. 313, 146 S.W. Rep., 931; Irby v. State,69 Tex. Crim. 619, 155 S.W. Rep., 544.

If the objection was specific enough, we still doubt the application and soundness of the rule sought to be invoked by appellant, that is, that evidence of the good character of the deceased will not be admitted except where the proof shows communicated threats. The only case in which the doctrine is directly held is Arnwine v. State, 50 Tex.Crim. Rep.. In a companion case, Arnwine v. State, 50 Tex.Crim. Rep., the correctness of this holding as announced in the prior and companion case, was vigorously assaulted. We have searched in vain for authorities approving the holding in the first Arnwine case. In Jirou v. State, 53 Tex.Crim. Rep., while this court was graced by the presence of the eminent jurist who wrote the opinion in the first Arnwine case, this court, speaking through Judge Ramsey, after quoting the statute, Art. 1143 Vernon's P.C., (then Art. 713 P.C.), says:

"The statute makes no distinction in the rule laid down authorizing the introduction of proof of deceased's reputation, between threats communicated or uncommunicated, nor would there seem to be any reason why, as to communicated threats, a different rule should obtain between cases where the threats were communicated to a defendant and believed by him, in a case where they were made to him by the deceased in person. To sustain appellant's contention we would have to ingraft an exception on the statute, which the statute itself has not made. We think, therefore, that this proof under the statute and decisions was clearly admissible."

The Jirou case is approved in Cannon v. State, 59 Tex. Crim. 407, in an opinion written by the learned judge who wrote in the first Arnwine case; also in Williams v. State,61 Tex. Crim. 364, the same learned judge affirms the admissibility of similar evidence and makes no reference to the Arnwine decision. Reference to the three authorities cited in the first Arnwine decision, supra, and an examination of them raises doubt of their applicability. Rhea v. State, 37 Tex.Crim. Rep., and Sims v. State, 38 Tex.Crim. Rep., two of the cases cited in the Arnwine opinion, were both written by Judge Henderson, and neither of them lay down the rule that evidence of the good reputation of deceased will not be admitted except in cases of communicated threats, nor do we think either of them to contain any expression tending to support said conclusion. In the instant case appellant proved by his witness Steele a threat apparently accompanied by a demonstration on the part of deceased, immediately preceding the killing, and also introduced the testimony of several other witnesses of uncommunicated threats preceding the killing. Proof of prior threats has always been held admissible in cases of self-defense. If accompanied or followed by testimony of a demonstration on the part of deceased, such evidence may afford justification for the killing. If the issue be as to who began the difficulty in a case wherein self-defense is set up, proof of uncommunicated threats is held to aid in solving the issue. The statute makes no distinction between the admissibility of such testimony in a case of communicated and one of uncommunicated threats. The plain, pointed and unequivocal terms of Article 1143, supra, are as follows: "In every instance where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased." When the language used in a statute is not plain or its meaning not clear, resort may be had to rules of construction; but when it is plain the courts have no right to add to or take from the statutory utterance its unmistakable meaning. The admission of the testimony as to the general character of deceased was not erroneous.

In the charge of the court appears the following:

"You are further instructed that if you find and believe from the evidence that at the time the defendant shot and killed the deceased, if he did, that the deceased had a pistol in his hand, under circumstances which reasonably indicated an intention to murder or to inflict serious bodily injury upon him, then the law presumes and you shall presume that the deceased intended to murder or to inflict serious bodily injury upon the defendant."

It is urged this was not a proper application of the law of Article 1106 P.C. In Kendall v. State, 8 Texas Crim. App. 569, Judge Clark discusses Article 1106 and states how same should be given to the jury in application thereof to the facts of a given case. We quote from Judge Clark's opinion:

"The provisions of this article were directly applicable to certain phases of the evidence, and of paramount importance to the rights of the defendant. If the jury believed from the evidence that, at the time the fatal shot was fired by the defendant, the deceased, Brown, was making a violent attack upon Brooks, under circumstances which reasonably indicated an intention upon his part to murder or to maim Brooks, and the weapon used by Brown, and the manner of its use, were such as were calculated to produce either of those results, then the law presumed that Brown designed to murder or to maim Brooks, and the jury should have been so informed in the most explicit terms."

Appellant has also an exception to that part of the court's charge wherein they are told that they are the exclusive judges of the facts and the weight of the testimony, contending that in a case such as this, and where the law of Article 1106 may be demanded, the charge ought to instruct the jury that where the law creates certain presumptions arising from facts the jury are not the exclusive judges of the facts. We are unable to agree to this. The State's theory, supported by its proof, was that deceased had no pistol and that he was not attempting murder or any other crime when killed. Appellant's testimony was to a contrary effect. Upon this condition of dispute as to whether in fact there was a pistol in the hands of deceased when killed and as to whether he was attempting to kill appellant, no one could pases in judgment save the jury. Unless they found upon the facts, — dependent on what the witnesses said, and which of them the jury, believed, — that it was true that deceased had a pistol at the time he was shot, and was making a violent attack on appellant under circumstances reasonably indicating an intention on his part to kill, then no presumption of law could arise. It is figuratively said but is actually true that a fountain cannot rise higher than its source; the presumption of law cannot arise until its facts be determined. These being in dispute, no one could settle them but the jury. In settling them the jury must be told in due and ancient form that they are to decide which of the witnesses told the truth. How else would appellant have the learned trial judge proceed? How else could this court decide? Appellant's witnesses swore that deceased had a pistol. The State's witnesses with equal positiveness denied this fact. If the trial judge had taken the settlement of this disputed issue away from the jury and decided it against appellant, we would promptly reverse the case. If he had decided it in favor of appellant, the rights of the State would have suffered irreparable injury. He should and did leave it where it belonged, in the hands of the jury for their decision.

We have weighed all the contentions made. The case has been here before. Richardson v. State, 91 Tex.Crim. Rep.. The errors complained of but not here discussed have been considered. Appellant killed his brother. The shooting was in the presence of their mother. She was the State's main witness. She had made her home with appellant for years before the homicide. Other witnesses testified. The evidence was fully developed. The law seems to have been fairly submitted and in its light and upon the facts the jury have decided the case against appellant,

An affirmance will be ordered.

Affirmed.

ON REHEARING. June 13, 1923.