Ekern v. State

GRAVES, Judge. Appellant was indicted for an assault with malice with intent to murder Clarence Arnold and was by the jury convicted of such an assault and assessed a term of three years in the penitentiary. The charging part of the indictment reads as follows: “* * * that Lincoln Ekern on or about the 17th day of October, A. D., one thousand nine hundred and forty-five and anterior to the presentment- of this indictment, in the County of Gray and State of Texas, did then and there unlawfully, with malice aforethought, shoot Clarence Arnold with a pistol, with the intent then and there to murder the said Clarence Arnold,” etc. Appellant claims that this terminology fails to allege an assault with intent to murder as contemplated by the statute. We are furnished, among other cases, with that of Cooper v. State, 143 S. W. 355, 60 Tex. Cr. R. 411, as authority for this contention. We are not impressed with the applicability of this — 321 — case to the matter here in question. In the Cooper case, it was held that although the accused was charged with an assault with intent to murder, the trial court therein charged the jury that “an assault becomes aggravated when copimitted with a deadly weapon under circumstances not amounting to an intent to murder or maim.” Then follows an application of the law to the facts, still maintaining therein, in applying the reasonable doubt thereto, the phrase “to murder or maim.” It was held in that case that the charge of an assault to murder did not include an assault to maim, and a reversal was ordered therein. No such complaint is made herein. In the case of Perez v. State, 22 S. W. (2d) 309, we have an indictment in the same words as the one in the present case. Judge Christian, of lamented memory, wrote the original opinion in which he upheld the indictment, but made note therein that the same was not challenged until in a motion in arrest of judgment and pretermitted a discussion of the question because the matter had not been properly presented in a motion to quash. Judge Lattimore, writing on the motoin for a rehearing, upheld the indictment but advised an avoidance of leaving out the allegation of an assault in so many words, and said: “We do not regard it as a strained construction to hold that an indictment, which charges that P shot 0 with malice aforethought and with an intent to kill him, charges an assault with intent to murder. The omission of the allegation that P made an assault upon 0, and the omission of some description of the general character of the weapon used in so doing, is not to be commended but avoided.” Under our reasoning, we are impressed with the idea that when one is charged with unlawfully and maliciously shooting another with a pistol with intent to kill, these words of themselves import and carry with them a charge of an assault with intent to murder. An assault is defined by Art. 1138, P. C., as being the use of any unlawful violence upon the person of another with intent to injure him, and we believe that the charging portion of this indictment clearly charges such an action upon the part of the appellant. Complaint is also made of the paragraph of the trial court’s charge wherein there was presented the law of self-defense. It is said to be vague and confusing, and that it shifts the burden of proof to the appellant; also that it bases such defense on, what the jury believed concerning the acts and demeanor of — 322 — the injured party at the time of the shooting rather than what the appellant reasonably believes at such time. While this paragraph does seem to be complicated to some extent, nevertheless, the testimony of appellant as to this defense was itself complicated, and was based on a long association and various transáctions between himself and the injured person (his ex-stepson), and included, among other things, previous communicated threats, as well as domestic troubles, in addition to a plea of temporary insanity, and we confess our inability to see how such paragraph in such charge could very well be improved upon. It finally seems to convey to the jury that if they believed, or had a reasonable doubt thereof, that appellant reasonably believed that the injured person was making or about to make an attack upon him, as viewed from appellant’s standpoint, and that he was in immediate danger of death or serious bodily injury, or if they had a reasonable doubt thereof, then they should acquit appellant. It only demanded that the jury believe, or have a reasonable doubt thereof, that appellant reasonably believed that such facts existed, and not the belief of the jury as to the facts themselves. Such being our view of the proper construction of this paragraph, we see no error manifested therein. Paragraph 4 of the trial court’s charge is attacked mainly upon the ground that in outlining the constituent elements of an assault with malice, as well as its punishment, the trial court failed to include therein the idea as conveyed by the phrase, “and not in his own self-defense”, or words of like character. It is to be noticed that in Paragraph 3 of such charge, the careful trial court had given a charge on the offense of murder with malice, and there was included therein the idea of self-defense. Then immediately in the succeeding paragraph, he merely intended to and did call to the jury’s attention the basic difference between an assault with malice and an assault without malice and the applicable punishment. Later on in the charge he followed this with a self-defense charge, unhampered with any further instructions, and authorized an acquittal under their belief, or a reasonable doubt thereof, in a certain belief upon appellant’s part. The court cannot and is not required to charge all the law in each paragraph of his charge, but such charge should be taken and considered as a whole; and an ordinary jury is expected to and surely does take the charge as a whole and considers it as such. The phrase, “and not in self-defense”, was not necessary in a presentment of the law. It was so held in Huntsman v. State, 143 S. W. (2d) 587; also in Griffin v. State, (our No. 23,405) not yet reported. (Page 28 of this volume.) — 323 — Bill of Exceptions No. 5 complains because of certain argument of the District Attorney in his closing address to the jury as follows: “And if Blake was here, gentlemen, I will bet he would get on this witness stand and he wouldn’t corroborate Lincoln Ekern that he told the defendant that Clarence Arnold had threatened Lincoln Ekern’s life.” Immediately upon the making of such argument an objection was made thereto, and the trial court was requested to instruct the jury orally, as well as in writing, not to consider such remarks, at which time appellant’s attorneys prepared such requested charge and the trial court at such time gave such requested charge to the jury; nevertheless appellant insists that such remarks were of such a flagrant, damaging and harmful nature that their withdrawal by the trial court could not remove the effect thereof upon the minds of the jury. True it is that appellant had testified that Blake had told him that Clarence Arnold had threatened appellant’s life; and it is also true that Arnold testified that he had talked to Blake, but that he had not threatened Ekern’s life in such talk, and it is also true that Blake was not present at this trial. Nevertheless, we do not think that the offer of the State’s Attorney to bet that Blake would not corroborate appellant’s statement was the receipt of testimony from such attorney as to what Blake would swear, but was merely a statement of his lack of belief in the utterance of this threat, and we think that the trial court’s prompt action in withdrawing such statement from the jury was proper and cured any error, if such there was. Again, appellant complains relative to the remarks of the District Attorney in his closing argument to the jury as follows: “It took him 16 months and seven days to get up the courage and some intoxicating liquor of some kind to do the infamous act that he did on the morning of October 17th, and a suspended sentence wouldn’t reform Lincoln Ekern.” Also, “If this county is ready to underwrite such practices as this man indulged in, if you are willing to turn him a loose —”. Whereupon, the appellant’s attorney objected to such argument and prepared and presented to the trial court a written charge as follows: “You will not consider the remarks of the State’s Attorney in his closing argument to the Jury when he said: — 324 — “ ‘If this county is willing to underwrite such practices as to turn Lincoln Ekern a loose--.’ ” This special charge was given to the jury by the careful trial court. We see no error shown in the statement, but think same to be an argument fairly deducibie from the evidence. However, if error there be, then the court’s prompt instruction should have been sufficient to cure the same. Appellant pleaded self-defense, temporary insanity, and also filed a plea for a suspended sentence in the event of a conviction. It was shown by the State’s testimony that appellant had married Arnold’s mother and lived with her for a while; that there had been trouble and disagreement between appellant and Arnold, as well as Arnold’s mother: that appellant was drinking on the day of the shooting. Therefore, we think the arguments complained of in Bill No. 4 just above discussed were legitimate deductions from the testimony. Bill of Exception No. 3 is rather complicated and borders on multifariousness. It begins with the introduction of a letter written by appellant to Arnold’s Commanding Officer in the Army, wherein, from the contents thereof the jury might have predicated a feeling of malice shown toward Arnold. In such letter complaint was made relative to Arnold having caused appellant considerable trouble and his desire to have Arnold move further away from Pampa or be discharged from the Army, and that appellant would see to it that Arnold would be re-committed to the New Mexico Prison to serve out a sentence therein. This letter was admitted by appellant to have been written by him. The State’s Attorney then cross-examined appellant, over objections, as to his trouble with Arnold and Arnold’s mother in which above letter he had stated that Arnold had caused dissension between appellant and Arnold’s mother, who was then the wife of appellant. The District Attorney cross-examined appellant rather thoroughly relative to. another woman having been the cause of the family trouble between appellant and Arnold’s mother, the other woman being appellant’s wife at the time of the trial. We think this testimony was admissible on cross-examination as to whether Arnold was the cause of the dissention in the marriage of appellant and Arnold’s mother. We think the State had the right to prove appellant’s drunken condition, if it could do so, at or about the time of the shooting early in the morning thereof; and this disposes of Bill No. 6 as well as Bill No. 16. — 325 — Many further bills relate to the introduction of photographs of the car in which Arnold was sitting just before he was shot, as well as the surroundings at such time. These photographs were taken soon after the shooting and seem to fairly represent the surroundings to which the witnesses testified, and we see no reason why they should not have been admitted in evidence. Again, complaint is made in Bill No. 17 of the testimony of Jeff Guthrie, when he testified as follows: “On the morning of October 17, 1945, when I saw Lincoln Ekern, he was under the influence of liquor. The first thing he said to' me, he said, T just shot and killed an ex-convict son of a bitch down here and I hope I did kill him.’ ” It was shown that this witness saw appellant walk into the sheriff’s office and he went in immediately behind him, and such statement was made by appellant. The witness then arrested Ekern as he said, “After I saw his condition, I wouldn’t have permitted him to leave the office.” It was also shown that after the shooting appellant immediately went to the sheriff’s office and surrendered. It can be gathered from the facts that at the time this statement was made appellant was not under arrest, but such statement and his condition caused Officer Guthrie to arrest him. We think the statement was admissible as evidence of guilt and was not in violation of any legal right of appellant. We have written upon this matter in line with the brief presented to us by appellant’s attorneys. However, there are further bills of exception found in the record which are not argued in the brief. These further bills have also had our attention and are overruled. The facts herein show a marriage between appefiant and Mrs. Gertie Arnold, she having a son by a former marriage, who was Clarence Arnold. Clarence was a wayward boy and was sent to the penitentiary in New Mexico when he was 21 years of age. He and appellant did not get along very well. Clarence and his mother had some difficulties with appellant. Eventually appellant and his wife were divorced, and appellant married again. On October 17, 1945, appellant was suffering from an ulcerated tooth and jaw, and early in the morning he started to a neighbor’s home. His car was giving him trouble near where Arnold and his wife were in a car, they having been visiting the mother. Appellant appeared suddenly at the side of the car in which Arnold was sitting and shot him with a — 326 — pistol. Ten wounds were inflicted on Arnold’s body, although only about five shots were fired. However, Arnold recovered from these wounds. Appellant’s defense was that he had been told that Arnold had threatened to kill him, and while having trouble with his car on the morning of the shooting, he saw Arnold get out of his car and start towards him. Thinking that Arnold was going to kill him, everything turned blank and he remembered no more for a short while. We think that under these facts and the record presented to us, the jury were within their province when they found appellant guilty of an assault with intent to murder with malice. Being of the opinion that no error is herein shown, the judgment is affirmed.