Middleton v. State , 147 Tex. Crim. 146 ( 1944 )

My Brethren have seen fit to grant appellant's motion for a rehearing herein and to reverse this case upon the facts alone, holding in effect that the facts show a case of perfect self-defense. To this I do not agree, and will endeavor to give my reasons therefor.

The facts relied upon by the State show that appellant, a negro 19 years old, in company with other negro boys, on the day of the killing, about 2 o'clock P. M., passed by the home of the deceased's father, and appellant had some words with the deceased's father about a dog barking at him, and "chunked" the dog, stating that he was nervous. The negroes then went on down to a hole of water where they were going to swim, at least one of the negroes had taken off his clothes and was in the water. The deceased was seen approaching the negroes, and, according to some of the witnesses, said, "What are you d-negroes going to do?" Appellant then replied, "You go to hell," and at that time he had a pistol concealed behind him; he also then addressed an insulting and obscene epithet to the deceased. The deceased had in his hand a 22 calibre rifle, and according to Mrs. Ada Thomas' testimony we quote:

"Q. Where was Nino (the deceased) holding the gun when he was shot?

"A. He just had it lying on his arm. * * *

"I don't know how he had that gun in his hand when he left the house but at the time he was shot the Mexican, Nino, just had the gun lying on his arm; he just had the gun barrel lying on his arm just before the shot was fired.

"When the gun was lying on Nino's arm, the negro was up on the bank; Nino never did have time to fire or nothing else when he was shot. I don't know just how that gun was lying at the time the negro shot.

"I didn't hear but one shot at the time of the killing, but there could have been more than one shot; if there was more than one shot, I didn't hear it. * * * I was just across the road from where they were; that is a dirt road but I don't know just how wide it is. * * *

"The way it was: the negro shot him and he fell and he ran and grabbed the gun out of his hand and throwed it in the creek. Just before the negro grabbed the gun out of the Mexican's hand, he said, 'You are not going to shoot me with that gun;' that is all I heard."

The wife of the deceased testified she heard the deceased tell the negroes not to pull off their clothes on top of the bank.

George Sanchez testified that he was the owner of the 22 rifle; that he arrived at the scene of the shooting, and was shown the rifle in the edge of the water; that he picked it up out of the edge of the water; that the gun had no shells in it; they had no shells for it, and none were in it.

Relative to appellant's claim that the deceased fired the rifle at him and shot him in the finger, Sheriff Robey testified: "I looked at both of his (appellant's) hands; that scar you show me wasn't there at that time; I didn't see any open wound on his hand at that time, but there was just a small scratch on his finger at that time; like it had been scratched on a nail or something like that; it was just a scratch."

Robert Fulton, one of the negroes, testified that while putting on his clothes he heard shooting; "I heard the shooting but I did not see it; I did not hear but one shot; I just heard the gun go off and wasn't paying much attention as I was putting my clothes on. After I heard the shot I saw Motern Middleton going up the road toward town."

Johnny Williams, one of the negroes, testified:

"I heard the Mexican, Nino Sandejos, speak to Motern Middleton, the defendant after he got down to the creek; I heard him holler down there to Motern; I heard him holler while he was still up at his house; I don't know what he said when he hollered, as I was still in the water; when he hollered at Motern, Motern told him to go to hell; when Nino came down there to the creek he asked Motern if he was trying to get smart with him and Motern told him an ugly word; when Motern told him that ugly word, the pistol was behind him in both hands, as I saw him when he started up to meet the Mexican boy with the pistol behind him; he had the pistol behind him when he went up to meet the Mexican boy."

There were other witnesses whose testimony would go to show that the deceased had the rifle in appellant's stomach and fired same prior to appellant's shooting the deceased. However, the above quoted testimony only relates to that upon which the State relied for a conviction. Appellant's own testimony would show a shooting in self-defense.

My Brethren have held that the sum total of this testimony leads one to the inescapable conclusion that the uncontradicted facts show a case of perfect self-defense under the law. This can only be true if the facts do show such and if there are no believable facts to the contrary.

The majority opinion herein, I think, has overlooked one legal proposition relative to the right of self-defense. If it is intended to be herein held by the majority that a case of perfect self-defense is presented by the testimony, it occurs to the writer that they must so find in the face of testimony indicating strongly that appellant provoked the occasion for the difficulty, and caused the deceased to attack him, thus producing the occasion to arise where he might take the life of the deceased. Mr. Branch in his Ann. Penal Code, pp. 1093 and 1094, cites numerous cases laying down the general doctrine that:

"If the difficulty was provoked by defendant with the intent to kill or to inflict serious bodily injury, the homicide is murder, although defendant was forced to kill to save his own life. Green v. State, 12 Texas Crim. App. 449; Thurston v. State, 21 Texas Crim. App. 245; 17 S.W. 474; Thumm v. State, 24 Texas Crim. App. 703, 7 S.W. 236 Jackson v. State,32 Tex. Crim. 211, 22 S.W. 831; Keeton v. State, 59 Tex. Crim. 316,128 S.W. 413."

In the case of Keeton v. State, supra, the accused told the deceased that "there was no use in him (the deceased) telling a dirty damn lie," and such was held to be sufficient to take away from Keeton his perfect right of self-defense, and require a charge on provoking the difficulty.

In the case of Coleman v. State, 49 Tex.Crim. R.,91 S.W. 783, the accused took the prosecutor apart privately and told him that he was a g-d liar, whereupon the prosecutor struck accused, and such conduct was held to have justified a charge on provoking the difficulty thus taking away accused's perfect right of self-defense.

In the case of Sanders v. State, 83 S.W. 712, the accused called the prosecutrix a red-headed bitch, and she struck him, and this language was held to justify a charge on provoking the difficulty.

In the case of Flewellen v. State, 83 Tex.Crim. R.,204 S.W. 657, this court held in a concurring opinion by Judge Davidson that when the accused jumped out of an automobile and told the deceased and a woman companion to "run, you s___ of b_____s," that a charge on a provocation of the difficulty was properly given.

In the late case of Norwood v. State, 120 S.W.2d 806,135 Tex. Crim. 406, where the facts show that the deceased and accused had had some words out on a ranch some hours previous to the killing, and the further fact that accused had driven his car up behind that of the deceased, blocking deceased's path to back his car out from on a public street in the city of Burnet, and upon accused's request to deceased's uncle to come and talk with the accused, — it was held that such constituted a basis for a charge on provoking the difficulty, and thus limited accused's perfect right of self-defense.

In the present case the State's testimony relied upon for a conviction shows that these negroes were going in bathing near the deceased's father's house; appellant had just passed such house, and had some trouble with a dog, throwing rocks at the dog; that deceased told the negroes, in substance, not to go in bathing down there; that appellant told deceased "to go to hell" and used an insulting epithet to him; that at such time appellant had a pistol in his hands behind his back and began walking to meet the deceased, who had a rifle in his hand. The insulting language had the effect, as such usually does, in causing the deceased to possess himself of a weapon, and thus provoked the difficulty. There is sufficient evidence to support the State's theory that there was but one shot fired, two witnesses swearing they heard only one shot, and the owner of the gun testifying that there were no shells in the gun, either loaded or unloaded ones; that when same was taken from the water there were no shells in the gun. There is also testimony of Sheriff Robey that appellant was not shot in the hand as he claimed to have been, but had a mere scratch thereon.

Under these circumstances I am not willing to say that as a matter of law these facts make a case of perfect self-defense. There is sufficient testimony upon which the jury could have and doubtless did predicate their verdict of guilt. If the facts as related by appellant were undisputed, and with no provocation upon his part, I think my Brethren would be correct, but there were further and controverting facts upon which the jury have passed, and I therefore dissent from the opinion reversing this cause.