Summers v. State , 66 Tex. Crim. 551 ( 1912 )

My brethren have affirmed the judgment, to which at the time I noted my dissent. One of the exceptions to the charge in the motion for new trial is as follows: "The court erred in failing to charge the jury on the law of manslaughter and in not submitting to them that issue under the facts of the case." My brethren hold that this does not present the question, that the exception is too general, and, therefore, they were not required to pass upon that issue, but they hold, in effect, that issue was not in the case. I desire to say that the exception, in my judgment, is sufficient. I have given my assent, at least have not dissented from some of the opinions recently delivered by my brethren, and some anterior to their accession to this court, following Joseph v. State, 59 Tex.Crim. Rep.. That opinion, however, when investigated and scrutinized does not bear out the decisions which follow it. The exception in the Joseph case is as follows: "Because the court erred in his charge to the jury on manslaughter." It may be that the court in rendering that opinion was correct in saying that was not sufficient. Many cases have been affirmed because it was held the exceptions to the charge as contained either in the bill of exceptions or in motion for new trial were not sufficient to point out the objections urged to the charge. I understand the general rule to be as asserted by the opinions in this State, that the exception or exceptions to the charge must point out the objections urged to it and upon which reliance is had for a reversal. Where the issue of manslaughter, for instance, is raised, or the issue of self-defense is part of the case, and the court fails to give any charge upon that issue of any character, then the general exception that the court failed to charge upon that issue is sufficient in pointing out the error on the part of the court in not charging the law applicable to such issue. This is in the nature of a general demurrer or exception, and if the facts show that the issue was in the case and not charged upon, then it was the duty of the court under the statute to charge all the law applicable to the case, and not having given any charge upon the issue, a general exception or objection that the court failed to charge the law applicable to such issue would be sufficient. The rule might be different and perhaps would be different if the court had submitted the issue of manslaughter, or of self-defense, as the case may be, or any other issue, but had not sufficiently applied the law of the case, and an exception was reserved to the failure of the court to charge fully the law applicable to such issue, then the exception should point out the defect in the charge. The difference is easily discernable between the rule as to the general exception as herein put and the rule as to special exception. To restate, if the issue is in the case and no charge is given, then a general exception, that the court failed to charge on the particular issue, because raised by the facts, is a sufficient objection to the charge; but if the court gave a charge on the particular issue, and it was not sufficient or not full enough or was erroneous, then it might or would become the duty of the objecting party to point out the error or omission. The issue of manslaughter being in this case, the objection urged was sufficient to raise the question for revision, because it specifically points out the failure of the court to charge upon an issue directly raised by the facts and upon which no charge was given. Of course, if the issue was not raised by the facts, there would be no force to the objection, but that would go to the application of the objection to the charge and not to the sufficiency of the objection. That manslaughter was in the case, in my mind, is not a debatable question. There is a strong conflict in the evidence, it being, so far as the witnesses are concerned, well balanced as to who began the difficulty, and it may be stated also in this connection that in this testimony there may be discovered the fact that defendant may have shot before being fully justified, although the deceased was making a demonstration at the time appellant fired the first shot. I discussed this matter in the dissenting opinion in the recent case of Treadway v. State, giving the reasons and citing the authorities, and refer to that case, believing it to be directly applicable to this case. I do not care further to discuss that question.

The court charged the jury with reference to self-defense as follows: "Every person is permitted by law to defend himself against any unlawful attack, reasonably threatening injury to his person and is justified in using all the necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. Homicide is justified by law when committed in defense of one's person against any unlawful and violent attack, made in such a manner as to produce a reasonable expectation or fear of death or some serious bodily injury." It will be noticed that this charge is applicable and was given only with reference to the issue of perfect self-defense. This is recognized by my brethren in their opinion wherein it is stated that the issues in the case were murder in the first and second degree, and the perfect right of self-defense. This was a guarded statement in the opinion, because if the right of imperfect self-defense was in the case, then the charge on manslaughter would be a necessity. So we have not the issue of imperfect self-defense in the case, but only the issue of perfect self-defense. The charge given by the court, under all the cases where the question is the right of perfect self-defense, is erroneous. Scott v. State, 46 Tex.Crim. Rep.; Crenshaw v. State, 48 Tex.Crim. Rep.; Huddleston v. State,54 Tex. Crim. 93 Carson v. State, 57 Tex.Crim. Rep.; Castro v. State, decided on April 17 of the present term of court; Antu v. State, decided by this court on April 24, present term. My brethren hold that this charge is not error. In all the cases above cited it was held error, the charge being identical in language in all the cases. On April 17 the Castro case was decided, and on April 24 the Antu case was decided, where this identical charge was held error. These cases are not noticed by my brethren in their opinion — neither qualified nor overruled. If the opinion in this case is correct, then the above cited cases ought to have been overruled. I deem it unnecessary to cite other authorities. It has been the rule laid down in the history of our jurisprudence, even up to within a month of the decision of this case. Our jurisprudence should not be left in this condition. Those cases were either correct or not; if not correct, they should be overruled; if correct, followed.

There is another question raised. My brethren indicate in the opinion it is not sufficiently presented to be reviewed. I quote the exception in the motion for a new trial. It is with reference to uncommunicated threats. The language of the motion for new trial is as follows: "The court erred in paragraph 20 of his general charge to the jury because the same limits the law of threats to those actually conveyed to defendant before the killing. The evidence shows that deceased had done acts and made threats against defendant which were not communicated to him until after the killing, yet such threats were admissible and the court should have so instructed the jury uncommunicated threats were admissible and proper evidence for the purpose of showing that in all probability deceased began the attack and that he meant to kill or injure defendant." I do not understand how, so far as the question is presented in the ground of the motion for new trial, it could be more specific. It is not necessary for the party making his objection to set out all the evidence in the case bearing on the issue. The particular objection here is stated and specifically pointed out, and not only so, but the court did not charge the law applicable to uncommunicated threats anywhere in the charge, and the record discloses beyond any cavil uncommunicated threats and acts of the deceased, which were not known to appellant until after the homicide. Wherever the issue in the case is as to who began the difficulty, then uncommunicated threats are always held to be admissible, and in this case were admissible and admitted. The statement of facts clearly shows such to be the case. That this was error see Huddleston v. State, 54 Tex. Crim. 98; Trotter v. State, 37 Tex.Crim. Rep.; Pitts v. State, 29 Texas Crim. App., 374; Levy v. State, 28 Texas Crim. App., 203; Pate v. State, 54 Tex.Crim. Rep., 130 Am. St. Rep., 875; State v. Blee, 133 Iowa 733.

In the Huddleston case, supra, the court gave a charge on uncommunicated threats, but it was held insufficient. In the Huddleston case this charge was given: "Threats made by a deceased person against the life of the person accused of the murder of such deceased person, while not communicated to defendant, may be considered by the jury in ascertaining the condition of the mind of the deceased at the time of the homicide." This was the charge given in that case upon uncommunicated threats. It was held incorrect, and among other reasons for reversing that case, this was given as one of the reasons: that "The question of self-defense was in the case, and uncommunicated threats were of decided importance in solving the question as to who began this difficulty. While uncommunicated threats would not justify because the appellant was not aware of such threats, yet it is a potent circumstance to be considered by the jury as to whether or not deceased began the attack that ended in the homicide. It was a very serious issue in the case as to who began the difficulty resulting in the homicide. This charge should not have been thus limited." The Huddleston case has been followed wherever the question has been presented to this court, and it follows previous decisions.

In State v. Blee, supra, this identical question was before the Supreme Court of Iowa. We make this quotation from that decision:

"Evidence tending to show threats made by the deceased against the defendant was admitted in evidence. Some of such threats were confessedly not communicated to the defendant prior to the homicide. The court instructed the jury that uncommunicated threats could be considered for no purpose save as an aid in determining who was the aggressor in the fatal encounter. This instruction is denounced by counsel for appellant as error; and it is the argument that the uncommunicated threats had bearing, not only to show who began the affray, but to corroborate the evidence of communicated threats, and also to show the attitude of the deceased toward defendant. The precise question is now before this court for the first time. However, it has arisen and been passed upon by the courts of sister states with more or less frequency, and almost without exception, as far as we have been able to discover the rule as here contended for by appellant has been adopted. In Levy v. State, 28 Texas Crim. App. 203 (12 S.W. 596, 19 Am. St. Rep., 826), it is said: `Such uncommunicated threats would be admissible and proper evidence for the purpose of showing that in all probability the deceased made such attack, and his motive in so doing. Such evidence has also been held admissible to corroborate evidence of communicated threats previously admitted' — citing Holler v. State, 37 Ind. 57; Cornelius v. Com., 15 B. Mon. (Ky.), 539; Horrigan Thompson on Self-Defense. In Cornelius v. Com., it was said: `We think that this testimony should, under the circumstances in this case, have been admitted. It tended to confirm the other evidence that Hopson had made threats against the prisoner, and to counteract a presumption of fabrication by the witnesses who gave their testimony. Besides, Hopson's intention to make an attack on the accused was an important matter, as well as the belief of the existence of such an intention on the part of the prisoner.' And this rule was expressly approved in Holler v. State. In State v. Williams, 40 La. Ann., 168 (3 So. 629), it was said: `We think that reason and authority concur in establishing their (uncommunicated threats) admissibility, under the circumstances, as corroborating the evidence as to the uncommunicated threats, as indicating their meaning and seriousness, as establishing the purpose with which the deceased provoked the encounter, and throwing light upon his acts in connection therewith.' In State v. Turpin, 77 N.C. 473, it was said: `This evidence (uncommunicated threats) was competent, and should have been admitted for several reasons: First, the uncommunicated threats were admissible for the purpose of corroborating the evidence of the threats which had already been given; second, they were admissible to show the state of feeling of the deceased toward the prisoner; third, for ascertaining who began the affray.' In State v. Brown, 22 Kan. 230, in speaking of uncommunicated threats, the court said: `Again, a rejection of these threats was error, as evidence of communicated threats had already been admitted, and in such cases it is competent, for the purpose of corroborating this testimony, to introduce evidence of uncommunicated threats' — citing authorities. In Roberts v. State, 68 Ala. 156, in speaking of uncommunicated threats in cases where self-defense is relied upon, it was said that such threats `recently made, are admissible for the purpose of showing the quo animo of such demonstration or attack. So uncommunicated threats are frequently admitted for the purpose of corroborating those that are communicated and which have already been admitted; and, likewise, where it is doubtful from the testimony which party commenced the affray, threats of this character are admissible as in the nature of facts to show who was properly the assailant.' In Territory v. Hall, 10 N.M., 545 (62 P. 1083), this question received very thorough consideration at the hands of the court, and the following conclusions were announced: `There are a few cases which hold that uncommunicated threats, to be admissible for any cause, must be shown to have been communicated to the accused, and others which hold that uncommunicated threats are not admissible, unless they constitute a part of the res gestae; but the more modern and better reasoned cases favor the admission of such evidence in the following instances: (a) To show who began the affray; (b) to corroborate evidence of communicated threats; and (c) to show the attitude of the deceased.' To our minds each of the cases thus cited is exactly in point, and we think the rule therein announced should be adopted for this State. From this it follows that the instruction complained of must be condemned."

What was said by the Supreme Court of Iowa is directly applicable to this case. The evidence discloses in this case, first, all kinds and character of threats against the life of the defendant by the deceased. Some of these threats were communicated and some were not communicated until after the homicide. The evidence also shows acts of preparation, laying in wait, for the purpose of killing the defendant by deceased, the importuning of one witness, at least, to induce the appellant to accompany this witness to a point where deceased could shoot him from a window. The evidence for the State shows that appellant, in passing the house where the difficulty occurred, saw the deceased and immediately began his attack, shooting the deceased to death. The evidence from eyewitnesses for the defendant was to the effect that while appellant was passing the door of the house deceased saw him and immediately turned facing him and threw his hand to where he carried his pistol and where it is shown by all the witnesses that he did carry it, and that appellant immediately fired. It is also shown that the wife of deceased ran in immediately and got the pistol from her husband's pocket and placed it under her garments and left the room with it. This is a controverted issue, however, but that does not relieve the court from charging upon the issue. It was an issue. There is no question of the fact that the wife of deceased came in the room where he was, knelt down over him, was about his person and went out of the room almost immediately. The fact that she got the pistol is confirmed by one side and denied by the other. These matters and facts were before the jury, and it was a controverted issue as to who began that difficulty, who was in the wrong, who made the first demonstration. This being true, the uncommunicated threats were of first importance in the trial of the case for a solution of that question. These taken in connection with the proved bad character for violence and the dangerous character of the deceased, his promptness in executing threats made, constituted this one of the important issues in the case. Appellant was clearly entitled to have these matters presented to the jury. It was a death struggle, for this evidence makes it clear and unequivocal that an assault by the deceased meant death to the assaulted party. This evidence was admissible for all the purposes stated in the quotation from the case of State v. Blee, above, and the charge should have so instructed the jury. It was a part of the law of the case, and should have been charged, for in this record there was no more important issue to be decided by the jury than this particular one. Upon it hung the determination of the case in the minds of the jury. The court gave a charge on communicated threats, but failed to give the charge on uncommunicated threats. The jury would naturally conclude under such circumstances that the court did not regard the uncommunicated threats as of any importance because not conveyed to defendant, and they were unapprised of the law and the effect of such evidence in the absence of such charge.

Without going into any detailed statement further in regard to this matter, I make the above observations as some of the reasons why I dissent.