Spencer v. State , 59 Tex. Crim. 217 ( 1910 )

On a former day of this court this case was affirmed. Appellant has filed a motion for rehearing and insists that this court was in error in holding that the court below did not err in refusing to charge the jury as to the presumptions of law arising from the use of a deadly weapon, as provided in article 676 of the Penal Code. After a careful review of this question we adhere to our former holding in this matter, and that the facts upon the trial of the case did not call for this charge by the court.

Appellant also complains that this court was in error in holding that the defendant in the trial of this case could not show or prove that the deceased had assaulted other parties and commenced an attack upon different parties without any apparent cause or excuse and that but a short while before the difficulty in which he lost his life, he had, without excuse, attacked Dewberry and Wilson and that in said attack he was wholly in the wrong and that he had drawn his knife upon them, as set forth in appellant's bill of exceptions No. 6. After a careful review of the authorities we are of opinion that we were in error in holding that the appellant was not entitled to this testimony. According to the testimony of the defendant upon the trial of the case, the deceased attacked him without any excuse whatever; that he threw one arm around his neck, drew him down, put his other hand in his pocket and swore that he would cut his guts out. He further testified that the deceased had told him of frequent difficulties that he had had and about how he had used his knife in the difficulties, and that the attack that was made upon Dewberry and Wilson on the morning of the difficulty and but a short time before, which was illustrative of the character of the deceased as showing that he was a man that would provoke a difficulty without any apparent excuse and that in all of his difficulties he was in the wrong. That he would become angry, infuriated at trivial matters and would make violent assaults with his knife upon the objects of his anger. Appellant complains that this court was in error in holding that the defendant was not entitled to the testimony of the witnesses Nunn and Shotwell as to the circumstances or difficulties that they had had with the deceased some six months before the difficulty with appellant, and that the character of the assaults that he made upon the said Nunn and Shotwell were similar to the assaults made upon the appellant. In the case of Poer v. State, 67 S.W. Rep., 500, this court in speaking of questions similar to this, held that the appellant was entitled to this testimony, and continuing the court in that case said: "Appellant offered testimony to the effect that deceased had made attacks upon two different parties prior to the homicide, which had been brought to the attention of appellant. The circumstances under which these attacks were made show that, if true, without notice or any reasonable cause, deceased would become angry and infuriated and make violent assaults upon the object of his anger. This testimony, in our opinion, should have been admitted. Usually testimony of this character would have little bearing upon the case, and the general reputation of the party as being a violent and dangerous man would be sufficient. But, under the facts detailed in the testimony, the prior assaults, being known to defendant, would seem to have entered into and tend to solve this difficulty. So far as the evidence shows, deceased became enraged at the question of appellant as to how long before he would be again sent to the penitentiary, and immediately grabbed the mallet and made a threatening demonstration to use it. Defendant, being advised as to his conduct before in regard to the assaults made under similar circumstances, may have been induced to act more vigorously. It further tended to illustrate and explain the otherwise unexplained conduct of deceased as to whether he was a man who would probably do just what appellant testifies he did. It is true appellant testifies that he knew of the prior attacks upon the other parties, but was not permitted to show the circumtsances attending these attacks. If it was the custom of deceased, or one of his characteristics, to become suddenly enraged and make deadly attacks upon parties, without an apparent cause, or reasonable provocation, it may have entered largely into the reason for the prompt manner in which appellant shot." Also see to the same effect Crow v. State, 48 Tex. Crim. 419; 88 S.W. Rep., 814; Hampton v. State, 65 S.W. Rep., 526. It may be further stated here that the proof in this case discloses that the defendant had been advised of the deceased's conduct in regard to assaults upon other parties under similar circumstances. We are of opinion that this testimony was admissible as tending to illustrate and explain the conduct of the deceased as to whether he was a man who would probably do what appellant testified he did. The above authorities were not called to our attention in the brief of counsel in the original submission of the case and this court had proceeded upon the doctrine that the general reputation and character of the deceased could be inquired into but not particular circumstances. We are clearly of opinion, however, that where the particular transactions or difficulties have a tendency to illustrate the character and conduct of the deceased at the time of the fatal difficulty the defendant would be entitled to have such testimony to go to the jury if he had been advised of same to explain, if it will, who probably was in the wrong in the beginning of the difficulty.

On all the other questions raised in the motion for rehearing we are of opinion that our former opinion is correct.

For the error indicated the motion for rehearing is granted, the judgment of affirmance set aside and the cause reversed and remanded.

Reversed and remanded.