Buckner v. State , 55 Tex. Crim. 511 ( 1908 )

This case comes before us on motion for rehearing, appellant insisting that this court was in error in holding that the trial court did not err in his charge to the jury, on the effect of threats made by Treadwell against the life of the defendant, because, first, the defendant under the law would have the right to act upon communicated threats, whether in fact the deceased had made them or not. Second, it is not necessary in order to justify a defendant in acting upon communicated threats, that the threats have in fact been made. If the defendant had been told that the deceased had threatened to take his life and intended to shoot him he would have the right to act upon such information, if he believed the same to be true, whether in fact the deceased had made them or not. Third, the court in his written charge to the jury qualified the right of the defendant to act upon communicated threats, upon the proposition that before he could act upon such threats communicated to him, that the jury must find affirmatively that the threats were in fact made by the deceased. This was material error and prejudicial to the rights of the defendant, because John Buckner testified that he told the defendant on Monday, before the killing, that Jack Anderson had told him that he heard the deceased threaten to take the life of the defendant and that he intended to do it, and the court permitted the reputation of Jack Anderson for truth and veracity to be impeached by the State, and then in his written charge to the jury told the jury that before they could consider the threats, which Anderson had testified the deceased had made and which John Buckner has communicated to the defendant that the jury must believe from the evidence that the deceased had in fact made the threats to Anderson. This was material error and prejudicial to the rights of the defendant to act upon communicated threats viewing the matter from his standpoint, the law being that the defendant would have the right to act upon communicated threats whether the jury believed in fact the threats had been made or not. The defendant's right to act, viewing the matter from his standpoint was not dependent upon whether Jack Anderson had told the truth or had told a falsehood about what he had said as to Treadwell having told Anderson, but was dependent alone upon the defendant's belief that Treadwell had threatened him. After a careful review of the original opinion and the authorities cited in connection with other authorities, we believe this court was in error in holding that the charges on threats was not erroneous and harmful. The doctrine of threats is a statutory doctrine that must be given by the court, although the court should subsequently or prior thereto charge upon the doctrine of real and apparent danger. In other words, the law of threats is a substantive defense matter that should be presented wherever the doctrine of threats is proven in the trial of a case, and the law of this State is, it is immaterial whether the threats were in fact made or communicated, that they become pertinent testimony in the trial of a case upon which the court must give the law pertaining thereto. In this case the appellant relied upon threats purported to have been communicated to him. It was controverted by the State in the way of impeachment of appellant's witnesses and otherwise as to whether or not the threats in fact were actually made. The charge of the court tells the jury in substance that, if they believe deceased had made such threats against defendant, and at the time of the killing did any act manifesting an intention then to execute such threats, or did some act which was reasonably calculated in view of all the circumstances to produce in the mind of the defendant the belief that deceased was then about to execute the threat, the killing would be in self-defense; and if they so believe the facts to be, or if they have a reasonable doubt as to whether or not such is the truth of the case, they will acquit the defendant. This eliminates, as appellant insists, the question that the jury must pass on, to wit, the mental status of the defendant. Whether threats had been made or not, if defendant believed they had been made, and so believing acted upon said threats, then the law would justify him in so acting. The charge is clearly defective along this line. It is immaterial what the jury believed about the threats, but the charge should clearly inform them that if they believed the defendant thought the threats had been made, and so believing acted upon same, etc., then they will acquit the defendant. See Huddleson v. State,54 Tex. Crim. 93, 112 S.W. 64; Lockhart v. State,53 Tex. Crim. 589, 111 S.W. Rep., 1024; Watson v. State, 50 Tex.Crim. Rep., 16 Texas Ct. Rep., 589; Cohen v. State, 110 S.W. 68, and various other authorities that might be noted. It follows, therefore, that we were in error in the original opinion in holding that the error of the court below on the question of threats was not sufficiently erroneous to require a reversal of this case.

The motion for rehearing is granted, the former conviction is set aside, and the judgment is reversed and the cause remanded.

Reversed and remanded.