McBride v. State , 121 Tex. Crim. 409 ( 1932 )

This case was tried in March, 1931, prior to the taking effect of chapter 60, Acts Regular Session, 42nd Legislature (Vernon's Ann. P. C., art. 1257c), and must be passed on in the light of the law as it then was. (Vernon's Ann. P. C., arts. 1256-1257b).

It is insisted that we were wrong in saying that paragraphs five and six of the court's charge, which are copied in our former opinion, sufficiently presented the law of the rights of the accused growing out of what he claims to have been the condition of his mind when he shot. Our understanding of the law applicable was set forth in Crutchfield v. State,110 Tex. Crim. 420, 10 S.W.2d 119. The jury in this case were authorized by the charge to look to all relevant facts and circumstances in evidence in determining whether the accused acted upon his malice aforethought. This was the pertinent issue before the enactment of the recent act of the Legislature above referred to. The question as to whether the jury believed that appellant was actuated by malice aforethought in what he did was pointedly set before them in paragraph six of the charge. At the time of this trial the law went no further than to require that the jury determine from all relevant and pertinent facts in issue (1) whether the homicide was murder, and (2) whether it was upon malice aforethought. We have a different state of facts in certain cases under the law as it was changed by the act referred to. See Butler v. State, 121 Tex.Crim. Rep., 51 S.W.2d 384, opinion this day handed down. We perceive no error in the matters complained of.

We are not able to agree with appellant's contention that the court should have charged the jury that in passing upon the guilt of the accused they might take into consideration his state of mind. We do not believe this to be a sound proposition.

Appellant's exception to paragraph 8 of the court's charge for its failure to tell the jury that before they could convict appellant they must believe that he intended to kill deceased seems to present nothing tangible. The jury were told in said paragraph that, if they found from the evidence beyond a reasonable doubt that appellant "voluntarily and with malice aforethought" killed the deceased herein by shooting him with a gun, etc., they should convict. We think we sufficiently discussed this proposition in the Crutchfield case, supra. There was no question raised by the facts in any wise casting doubt upon the proposition that the weapon used by appellant was a shotgun, and we see no application to this case of what was said by us in Fitch v. State, 37 Tex.Crim. Rep.,36 S.W. 584, or in Claxton v. State, 105 Tex.Crim. Rep.,288 S.W. 444, 447.

The trial court in paragraph 11 of the charge enumerated a number of things which appellant claimed had been said or done by deceased at the time of or near to the homicide, and which he claimed caused him to do the shooting. The court told the jury, that if they found that part or all of these things created in the mind of appellant a reasonable expectation or fear of death or serious bodily injury, and that so believing he shot and killed deceased, they should find him not guilty. We doubt the wisdom and propriety of the court undertaking to enumerate these facts, but regard the charge as favorable to appellant.

We fail to comprehend any reason for the exception to the charge of the court because of its failure to tell the jury that no verbal provocation would justify an assault. There was no charge on provoking the difficulty, or any other limitation of the right of self-defense, which would have called for the charge mentioned if such charge had been proper in any event. No special charge was asked on the point.

Appellant insists that the conduct of the state's attorney in asking a witness if he knew the general reputation of deceased while living for being a peaceable, law-abiding citizen or otherwise, and for truth and veracity, should constitute reversible error. The record shows appellant objected when the question was asked, and the court sustained the objection. In the bill it is made to further appear that the attorney representing the state, after the court sustained the above objection, said that all of these witnesses (referring to five witnesses whose names had been called) were called for that purpose; also that appellant further objected to the state thus putting these witnesses before the jury, and that the court sustained the objection. The trial court does not quite agree with the statement of these matters in the bill, and qualifies it by setting out a number of things which were in testimony which might be regarded as making it a somewhat close question as to whether the reputation of the deceased was an issue. The court also recites that witnesses were coming in and being sworn and put under the rule, and that, at the same time the witness who was asked the question, objection to which was sustained was sworn, other witnesses were also sworn, and that, after the objection was sustained said attorney stated to the court that he had the other witnesses for the same purpose, and, the objection having been sustained, he would have no need for them, and that they might be permitted to go, and that thereupon they were excused from further attendance upon the court. We are not inclined to agree with appellant that there was error in this for which the case should be reversed. The manner and tone of the occurrence as affecting fair procedure, was heard and observed by the court below, and we respect his ruling when an abuse of his discretion is not shown. The probable harm resulting from the attempt of the state to prove, in manner and form as set out in Childress v. State,92 Tex. Crim. 215, 241 S.W. 1029, that the accused was a man of bad reputation as a law-abiding citizen, when there was no issue to which such question might have been pertinent, is evident, and we observe that such was the case in all the cases cited by appellant as approving what was said by us in the Childress case, supra. We are cited to no case and believe none can be found holding it reversible error to merely offer to prove the reputation of deceased, and especially under facts such as those appearing in this record. We think the principle involved in the Childress case, where the state offered before the jury to prove that the accused was a man of bad reputation, and that involved in the instant case, where the question was with reference to deceased, are altogether different, and that there is no analogy between the two propositions.

Being unable to agree with appellant, the motion for rehearing will be overruled.

Overruled.