Atkison v. State

PRENDERGAST, Presiding Judge. Appellant was convicted of manslaughter, and his punishment assessed at five years in the penitentiary. The State’s evidence was amply sufficient to show that just about or before night appellant with some companions was in a drug store in the town of Stacy preparing to take a drink of “coke.” Deceased, Eli Brown, who was on a visit to his sister, who ran a hotel and restaurant, went from the restaurant into the back of the drug store to get a bucket of water. In doing so he passed appellant, who hailed him, and he responded. Upon getting the bucket of water, deceased was returning to the restaurant therewith, and, when passing, or just after passing, appellant about the door, appellant used most vile, indecent and insulting language towards Brown. Brown resented it then, but friends interfered, and no encounter was then had. Brown, smarting under the insult, immediately went across the street to his sister’s, got a double- *70 barrel shotgun, went across to the Stacy store, where he procured shells, and loaded the gun. The Stacy store was a block or less distant from the drug store. Brown’s sister, brother-in-law and other friends, hearing of the difficulty and anticipating that he might kill appellant with the shotgun, induced him to give it up or took it away from him. His brother-in-law unbreeched the gun, took out the cartridges and placed the gun under the counter in the store. Brown did not thereafter have the gun in his hands at all or attempt to get it. He remained in the store. Appellant, with the knowledge that Brown was in the store and had taken the gun therein, went from the drug store to the Stacy store. In going, he drew his pocketknife before reaching the Stacy store and kept it open in his hand until he reached the store. This knife was shown to have had a blade a quarter of an inch wide and three and one-eighth inches long, the entire knife six inches long. It had a guard where the blade fitted into the handle, so that it was, or had the appearance of, a dirk or dagger. The testimony of some witnesses was to the effect that, when appellant reached the Stacy store at this time, he renewed the insults to Brown. His friends again interfered, and two of them took him away to avoid a further difficulty or to prevent a killing. They carried him some distance from the Stacy store, tried in various ways to get him not to return to the store, but he persisted to such an extent that they turned him loose and desisted from any further efforts to keep him away from the Stacy store, where Brown remained. Hpon his return to the store the second time, he again had his said knife open ready for use. The testimony of some witnesses clearly shows that appellant again renewed his insults to Brown, some of the witnesses making him the aggressor in then also assaulting Brown. They thereupon clinched. Appellant cut deceased’s cheek open with his knife, cut him in the back of the left shoulder, stabbed him between the first and second ribs into the region of the heart, the doctor thinking it severed the aorta, from which wounds Brown expired in a very short time, without speaking. Some of the witnesses made Brown the aggressor at the immediate time they clinched and began fighting. It was also a disputed question whether Brown had a knife in his hand and assaulted appellant therewith, some of the witnesses testif3dng he did have and assaulted appellant therewith, others to the effect that he did not have. Appellant claimed that deceased in this fight slightly cut him in places. The State’s theory and claim was that these wounds were self-inflicted. We have not attempted to give in detail the testimony, nor all of .the disputed issues. We have merely given an outline so that the case may be understood in a general way. The appellant has some bills to some claimed leading questions propounded by the State’s attorneys to the witness W. C. Graham. The court qualified them by showing that the witness was decidedly adverse to the State, and for that reason he permitted said leading questions. These bills, as qualified, show no error. Carter v. State, 59 Texas *71 Crim. Rep., 73. A great many other eases in point could he cited, but it is unnecessary. As explained and qualified by the court, no error was committed by the judge in refusing to permit defendant to ask the witness Frank Smith and have him answer the impression that was made upon his mind by the deceased at the time he saw deceased with said gun, which was at the time he was going with it from his sister’s to the Stacy store, the court’s qualification showing that appellant was not present, what occurred between Smith and deceased was not communicated to him, and that his impression of what he thought Brown’s then intention was was inadmissible, the witness being permitted to testify all that was said and done between them at the time. Neither does another bill, wherein he sought to have the witness Jess Stacy testify that he, Stacy, believed that the deceased intended to go and shoot the defendant when he came into the store with the gun, as qualified by the court, show any error. The court gave a most admirable and apt charge submitting every issue properly which was raised by the testimony and necessary to .be submitted to the jury. The charge seems to have been prepared with a great deal of care and with a clear conception of the issues in the ease. The court correctly and fully charged on murder. The evidence clearly and forcibly presented this issue. But, as the jury found the appellant guilty of manslaughter only, there is no necessity of giving or discussing the charge on that issue. The court then correctly and fully charged the jury on self-defense in a most favorable and complete way in appellant’s behalf and in every way which was raised by the -evidence. Appellant’s testimony with other testimony raised the issue of self-defense. The court then charged on every phase of provoking the difficulty by appellant, and in each instance properly charged the converse of each issue on this subject raised by the testimony. Unquestionably, provoking the difficulty by appellant in every way submitted by the charge was raised by the testimony. The charge submitted the question of manslaughter under our manslaughter statute on that phase of the testimony and the well established law by the many decisions of this court, as follows: “You are further instructed, that if you believe from the evidence, beyond a reasonable doubt, that the defendant by his own wilful and wrongful acts, if any, went to where the deceased, Eli Brown, was killed, for the unlawful and wilful purpose of provoking a difficulty with him, with the unlawful and wilful purpose and intention to commit an assault and battery upon Eli Brown, and yoii further believe from the evidence beyond a reasonable doubt, that the defendant did some act or used language or did both, with the unlawful and wilful intention of producing an occasion to bring on a difficulty and to commit an assault and battery upon deceased, Eli Brown, and that such acts or language or both of the defendant, if any, such there were, were reasonably calculated under the circumstances at the time, to provoke a difficulty *72 with the deceased and that such acts or language or both, if any such there was, of defendant caused the deceased to attack the defendant with a knife and that the defendant cut or stabbed Eli Brown with a knife and thereby killed him in order to save his own life, then if you so find, you are instructed that the defendant’s plea of self-defense will not avail him, and the homicide would be manslaughter, and if you so find from the evidence beyond a reasonable doubt you will find the defendant guilty of manslaughter and assess the penalty as prescribed in this charge.” In the next paragraph the court submitted the converse of the proposition and told them, if that state of fact was true, appellant’s right of self-defense was not forfeited, and he could stand his ground and defend himself by the use of such means as the facts and circumstances indicated to him to be necessary to protect himself from danger, or what reasonably appeared to him at the time to be danger. The charge of the court on this subject has many times been expressly approved by this court. Woodward v. State, 54 Texas Crim. Rep., 88; Prescott v. State, 54 Texas Crim,. Rep., 485; Matthews v. State, 42 Texas Crim. Rep., 31; Tardy v. State, 47 Texas Crim. Rep., 444; Gray v. State, 61 Texas Crim. Rep., 454, and a large number of other cases collated by Mr. Branch in section 464 of his Criminal Law. Appellant objected to the court’s charge because it did not also submit a charge on manslaughter on the theory that deceased’s attack of him with a knife produced that degree of passion sufficient to render him incapable of cool reflection. But he asked no special charge submitting manslaughter under any such a theory. By his charge No. 1, which quoted in substance articles 1128, 1129, and subdivisions 1 and 3 thereof, and 1130, told the jury that, if they believed from the evidence that just prior to and at the time of the ^ killing of Brown he had been informed that Brown had gone after his gun for the purpose of killing him, and that at such time such acts and statements were of a nature to produce in his mind such passion, anger, rage, resentment or terror as to render his mind incapable of cool reflection and while his mind was in such condition they believed he was not acting in his self-defense he stabbed or cut Brown and thereby killed him, he would not be guilty of any higher offense than manslaughter, and, “if you so believe, or have a reasonable doubt thereof, it will be your duty to acquit defendant of the grade of murder.” This special charge, as seen, is not a charge submitting the question of manslaughter on the theory appellant claims it should have been, but was a specific charge telling the jury, under the circumstances stated, they must not convict him of murder. In our opinion, as he was acquitted of murder and only convicted of manslaughter, the refusal of the court to give this charge does not-present reversible error. And, further, as he was convicted of manslaughter only, the fact that the charge of the court submitted that question under one theory alone does not present reversible error. If the jury had found the appellant guilty of murder, then a different question would be presented. It might be that, if the *73 jury had convicted him of murder, it would have been reversible error to have refused his said special charge No. 1. As he was acquitted of murder and this charge was on that subject, murder passes out of the case and so does said charge so far as presenting any error is concerned. As the court submitted appellant’s claimed self-defense in a full and complete charge properly as presented by the testimony, the court did not err in refusing appellant’s said charges Nos. 3, 4 and 5 on that subject. Neither did the court err in refusing his special charge No. 9 about his right to arm himself with a pistol, etc., as the evidence did not properly raise the necessity of any such charge. After a careful consideration of the record in this case, the forcible brief filed by appellant’s able attorneys and the oral argument of this case, we think no reversible error is shown, and that the judgment should be affirmed, which is accordingly ordered. Affirmed. DAVIDSON, Judge, absent.