Richardson v. State , 91 Tex. Crim. 318 ( 1922 )

In the original submission of his case appellant raised the question that the court below committed error in not giving him the benefit of a charge as to the presumption of the law from the use of a deadly weapon by deceased under Article 1106, Vernon's P.C. Complaint is made because such assignment was not discussed in our original opinion.

No exception was taken to the failure of the court to embrace said Article in his charge, neither was any special charge requested upon the subject. In no way was the lower court's attention called to such omission. Notwithstanding this appellant insists that it was fundamental error to omit to charge thereon, and that the provisions of Article 743, Vernon's C.C.P., if properly construed, require this court to pass upon the question in the absence of a special charge requested or exception taken at the time of trial. Said article, in connection with the preceding ones, has been so frequently construed since the amendment of the Legislature in 1913 we do not think it necessary to again review the matter. One of the clearest statements of the construction of the court under the present practice Act will be found in Williamson v. State, 74 Texas Crim. Rep. at page 293. Referring to the article in question and the Acts of the 33d Legislature, the court used this language:

"It was provided in that Act that the charge before being read to the jury should be submitted to counsel and they must at that time present in writing any objections to the charge, distinctly specifying each ground of objection, and if no objection is made at that time, the case shall not be reversed because of errors in the charge, and if such objections are made we shall not reverse unless such errors were calculated to injure the rights of defendant, or unless it appears he has not had a fair and impartial trial."

We believe the foregoing to be a correct interpretation of Article 743 under the Acts of the Legislature referred to, and have been unable to agree with the construction thereof urged by appellant. The omission to charge Article 1106 was not such fundamental error as would require reversal in the absence of proper exceptions.

The court charged on the issues of murder and manslaughter. Nowhere in his charge is the doctrine of reasonable doubt as between degrees presented. Counsel by timely and pertinent exception pointed out this omission. In our original opinion we held that the law of reasonable doubt having been applied to the whole case the omission to charge the same as between the degrees was not reversible error. It is urged in the motion for rehearing that in this portion of our opinion we were in error, especially so as the omission was called to the attention of the trial judge by timely exception presented in writing before the charge was read.

We have had occasion to review many decisions in our consideration of this question on rehearing. In Guagando's case,41 Tex. 634, the jury was charged to acquit if there was reasonable doubt of guilt, but there was omission to instruct reasonable doubt between degrees of murder, held error. In Murray v. State, 1 Texas Crim. App. 423 Judge White says: "The question is as to the propriety and necessity of a charge upon the reasonable doubt between the different degrees in cases of murder, especially when such charge is asked by defendant. There are, as it appears to us, many good reasons why this rule should be adopted. Oftentimes it is of as great and vital importance to a defendant to have the benefit of whatever reasonable doubt may arise in determining the grade and degree of his crime as in adjudging the general measure of his guilt." In Lister's case, 1 Texas Crim. App. 744, no special charge on the subject was requested; the reasonable doubt between the degrees was approved, and commended to the trial courts. In Eanes v. State, 10 Texas Crim. App. 452, reasonable doubt was charged generally, and then was added, "and the rule of reasonable doubt applies to the grade of offense." It was held not sufficiently definite as applied to degrees. McCall (14 Texas Crim. App. 353), was charged with theft, but Judge Wilson says: "Where an offense consists of different degrees, a charge giving the defendant the benefit of reasonable doubt between the degrees would be proper, and it would be error ordinarily insuch case to refuse such charge when requested." In Hall v. State, 28 Texas Crim. App. 146, it is said: "It is objected that the court did not instruct the jury to apply the reasonable doubt as between the several degrees charged upon. Such omission has never been held reversible error, where the court applies reasonable doubt to the whole case, except in those cases wheresuch additional instruction has been especially requested andrefused by the court. McCall v. State, 14 Texas Crim. App. 353." In Frizzell v. State, 30 Tex.Crim. Rep., is found this language: "To the objection that the charge of the court omitted to instruct the jury to apply the reasonable doubt as between several degrees charged on, we reply such doubt to the whole case, except in this, where the court has refused omission is not error when the court has applied the reasonable specialinstruction covering the omission." In Cockrell's case (32 Tex. Crim. 592) Judge Davidson says: "Exception was reserved to the charge because it failed to charge the reasonable doubt between manslaughter and self-defense. The court gave this charge as between murder in the first and second degrees, also between murder in the second degree and manslaughter, and further instructed if there was a reasonable doubt of defendant's guilt he should be acquitted. This was sufficient." The foregoing quotation disposed of the question, but this clause is added. "Even had the court failed to instruct the jury to apply the reasonable doubt between the degrees of culpable homicide charged upon, such omission would not have been error where the court applies such doubt to the whole case." The Hall and McCall cases (supra) are here then cited, both of which were to the effect that it would be error if request was made for such instruction and refused. In Little v. State, 39 Tex.Crim. Rep. will be found the following language, used by Judge Henderson. "Appellant objected because the court failed to instruct the jury as to a reasonable doubt as between the degrees of murder. The court instructed the jury if they had a reasonable doubt as to the guilt of defendant to acquit him. This applied to all the degrees, and it was not necessary for the court to give a specific charge as to a reasonable doubt as between the degrees. The charge in question as given authorized the jury to acquit of any degree, if they had a reasonable doubt of the guilt of defendant of that particular degree." No authorities are cited in support of the proposition as announced in the Little case and no reference whatever is made in that opinion to the cases reviewed by us announcing a contrary doctrine. Upon a more thorough examination we find that the case of Wallace v. State, 97 S.W. Rep., 1051, cited by us in our original opinion does not support the exact proposition under discussion. The question there before the court was the failure to charge upon reasonable doubt directly in connection with the charge on self-defense, and the holding in the Wallace case was to the effect that having charged the doctrine of reasonable doubt as applied to whole case it was sufficient. The same is true with reference to the case of Furr v. State, 194 S.W. Rep. 398, cited in the original opinion. That was a seduction case and the decision turned largely upon the same point presented in the Wallace case. We find in the examination of the authorities much confusion arising at this point. A great many cases cited by the State in their brief in reply to appellant's motion for rehearing throw no light upon the direct question before us, but are in support of the proposition that it is not necessary for the trial judge to charge the law of reasonable doubt in connection with each separate defensive issue. There is no lack of authority to support the latter proposition and many of them may be found collated in Mr. Branch's Anno. Pen. Code under Sec. 11, on page 5. We may have overlooked some authorities, but so far as we have examined those to which our attention has been directed or which have been discovered by us, the Little case, (supra) is the only one which holds unqualifiedly that it is not error for the court to refuse to charge on reasonable doubt as between the degrees in the face of a request for such instruction. The failure of the opinion in that case to cite any authority or make any reference to the immediately preceding decisions announcing a contrary doctrine caused us to make the research, and we have been unable to reconcile that opinion with the many others cited by us.

As we understand the construction placed upon the present practice Act the trial judge is still expected to write the law applicable to the case in his charge to the jury, and if he has inadvertently omitted some phase of the law, or if he thinks some phase of the law inapplicable where counsel for appellant entertains the contrary view, and the omission is specifically and pertinently pointed out by written objection to the charge as prepared, it is not necessary in a felony case that a special charge be submitted to supply the omission, but appellant may stand upon his objection filed if it is sufficiently specific to call the court's attention to the matter complained of. Of course a different rule obtains in misdemeanor cases.

We have reached the conclusion that we were in error in holding that the law of reasonable doubt as charged by the court as applicable to the question of guilt cured the failure to charge upon the same subject as between degrees. The jury might entertain no reasonable doubt as to the guilt of one upon trial, and yet be confused in reaching a conclusion as to the degree of the offense. The omission in the charge having been directed to the court's attention in a timely manner, the same should have been supplied.

For a failure to do so we have reached the conclusion that the judgment of affirmance must be set aside and the judgment of the trial court reversed and the cause remanded.

Reversed and remanded.