R. C. Myers and others v. The State, 33 Tex. 525

Lihdsay, J. The parties appellant in this cause were indicted in Brazos county for the murder -of William H. Millican on the sixth day of February, one thousand eight hundred and seventy. A verdict of guilty was found by the jury upon the trial, against all the accused, and their punishment was assessed at confinement in the penitentiary of the State for a period of six years.

Their appeal has brought the ease to this court for revision upon numerous assignments of error, none of which appear from the transcript of the record to merit the special consideration of this court, except so far as those assignments of error call, in question the rulings of the court in the exclusion of testimony offered by the defendants-on the trial, and the implied and incidental error of the verdict of the. jury from a supposed defect of evidence to sustain the jurisdiction of the court, under the venue as laid in the indictment.

The charge of the court, upon the facts as presented in the record was full, complete, well considered, and con tained the law applicable to the case; and a definition of manslaughter by the court was 'altogether unnecessary, because 'no other legal deduction could be made from the facts proved, than murder of the first or second degree, or justifiable homicide. The nature and character of their offenses were fully given in charge to the jury, and to the jury was properly left the determination of the class or predicament in this category into which the evidence placed these parties.

To charge them that the facts as proved before them would warrant a conviction of manslaughter would have been palpably erroneous. As to the question of the sufficiency of the proof to sustain the jurisdiction' of the court as laid in the indictment, a brief analysis of a few articles of the Criminal Code will readily and satisfactorily dispose of it.

Article 2949, Paschal’s Digest, says that the- only pleadings by a defendant in criminal cases are a motion to set aside the indictment; a special j)lea, setting forth the-facts why he should not be tried upon it; an exception to it for matter of form or substance; a plea of guilty; and a plea of not guilty. By

Article 2951, Paschal’s Digest, the only special pleas which .a defendant can be heard to make are, that he has been before convicted legally in a court of competent jurisdiction, upon the same accusation, after having been tried upon the merits, for. the same offense; or, that he has been acquitted by a jury of such accusation, in a court of competent jurisdiction, whether the acquittal was regular or irregular; or, that the court before whom he is prosecuted has no jurisdiction to try the cause; which special pleas, by

Article 2952, must be verified by the affidavit of the defendant. This special plea to the jurisdiction contemplates only two things; either that the defendant is not the person to be indicted for the alleged offense, or if such offense has .been committed at all by the defendant it was not committed within the local, or territorial jurisdiction of the court. Then, if a party intended to avail himself of the want of jurisdiction of the court, he must do it by a special plea at the time of the trial.

This requirement is just as imperative as is the requirement of the tender of a bill of exceptions to any decision, .opinion, order, or charge of the court, which the party may wish to have revised in this court. The object of this revision is the granting of a new trial. This court eannot authorize it, except for the same causes for which the district court trying the case might or should have granted it. These causes are all set forth in

Article 3187, Paschal’s Digest, none of which embrace the cause here relied upon, by the most remote implication.

The ninth cause, in which the verdict may be, alleged to be contrary to law and evidence, and in which alone it could possibly be embraced by implication, expressly precludes such an inference by providing that when a “ defendant is found guilty of an offense of inferior grade to, but of the same nature as the offense proved, the verdict shall not be regarded as contrary to the law and the evidence within the meaning of the provision.” According to the criminal law of Texas, therefore, even if there were not a scintilla of evidence exhibited in the transcript of the record, of the precise locality, or the place where the offense was committed, the party could not avail himself of it here, unless he had put the fact in issue by special'plea on the trial in the court below.

In the case of Perry Baker v. The State, decided at this term of the court, hastily acting upon what seemed to be a recognized rule by the courts of this State, it was adjudged that the failure of proof, without the plea, was sufficient to arrest the jurisdiction of the court trying the cause. That opinion, as well as all others containing a like recognition, the court is agreed, is not a correct exposition of the law of the criminal code.

But in this case, this court thinks the evidence in the record does raise a violent presumption that the offense for which these prisoners were indicted was committed in the county where the venue was laid, and where the trial was had ; and Wharton, in his American Criminal Law, p. 280, says, such proof is sufficient, and reason and practical justice say the. same thing everywhere. A violent presumption is certainly raised by the evidence presented to the court in this record.

The courts of the State would be recreant in duty, if they neglect to observe, continually, that the Criminal Code, adopted for the prevention, suppression and punishment of crimes, is to be construed as directed by Article. 1611, Paschal’s Digest, 1! according to. the plain import of the language in which it is written, without regard to the distinction usually made between the con•struction of penal laws and laws upon other subjects.” This is the law for the guidance of this court; yet it is often asserted in argument by counsel, and interpolated in judicial opinion, that penal statutes are to be construed strictly, even under the present system of criminal law in the State.

Certainly, in all doubtful cases, precedent and former, adjudication of what the law may be Bhould have great weight with all courts.

But all courts would but subserve the interest of society and fulfill -the obligations of conscience, by the observance of that remarkable institute of Justinian, so replete with wisdom and so pre-eminently just, in which it is ordered : “ Let no judge or arbiter believe himself bound to follow official opinions which he holds not to be correct; nor even the judgment of the prefect or other magnates; nor those of the Supreme Court of Prefecture and of other Supreme Courts ; but we commend all our judges to follow truth, justice and law.

It does not seem good to us, that if one judge decide wrong, his error should be extended to others. The decision of the judge should be founded on law, and not on precedents.” The language of the Criminal Code is very explicit, that when a party is accused of murder, he may justify the homicide by proof of threats made against his own life by the slain party. The rule which controls the mode of its introduction, however, is still left by the code to be settled by the principles of the common law.

They must be actual threats to take the life of the accused, and those threats must be brought directly to his knowledge. If the justification is attempted upon the ground of such threats having been previously communicated to the slayer, it must be unequivocally shown that the party slain was doing some act at the time of the killing, which manifested an intention to carry the threat into execution. -It is necessary at that moment there should be some positive demonstration' of the fell purpose, to warrant the exercise of this extreme right of sacrificing the life of a human being.

If such positive demonstration is made by the party slain, at the time of the homicide, the accused is entitled always to the benefit of such testimony as will show all such threats of his victim, which were communicated to him before the killing. The communication made by the witness Abbott to the slayer Myers was no thréat of the deceased Millican to do personal violence to the accused by himself.

It was nothing but an opinion expressed by him of the probable consequences which might result from the line of conduct he was pursuing; and, instead of indicating a purpose to assassinate him, was expressive of some solicitude about the peril in which he was placing himself in that community. .The language of the communication of this witness cannot be tortured into a threat of personal violence intended by the decedent.

All the false hue and false coloring.of a threat of personal violence by the deceased, the transaction borrows as the reflected light of the alleged actual threat set forth in the bill of exceptions as the intended statement of Cannon as a witness, but which never was communicated to the slayer. The statement of the witness Edwards to the accused, had no more the complexion of a threat of personal violence of the deceased upon the slayer, than did the testimony of the witness Abbott.

These were the only witnesses who made any communications to the accused; and these communications were not threats but the mere expressions of an opinion of the peril in which the accused, R. C. Myers, was placing himself in an excited community. Without the testimony set forth in the several bills of exceptions, these two witnesses who made the communication did not interpret them ás threats of violence by the decedent.

There being, therefore, no' threat by the decedent to take the life of the accused, which was communicated to him, his action at the time of the homicide could cot have been founded upon any reasonable expectation that deceased was about to carry threats upon his life into execution. The law therefore implies malice in the killing, and the verdict of the jury, whose province it was to judge, and who seemed to have judged reasonably about the facts, only respond to the just demands of the law.

The excluded testimony presented in the bills of exceptions • was properly excluded by the court; facts they might be, .but they were inadmissible by the rules. of law, and. would not have shown any legal justification for the homicide. The judgment of the district court is affirmed, and the new trial refused. Affirmed. Denison, J. There is one error in the rulings of the court below disclosed by the record, in the first paragraph of bill of exceptions (B), which I am constrained to believe sufficient to warrant the reversal of the judgment below. This paragraph is as fellows, to-wit: “ State of Texas v. Robt. O.

Myers, Geo. W. Hardy, David Myers. In the District Court Brazos county, Spring term, A. D. ■ 1870.—B¿ it remembered that on the trial of the above entitled cause the following rulings were made by the court: First, the counsel for the State introduced a witness, T. O. Woodlief, who testified that on Sunday evening about four o’clock of the day of the killing of W. H. Millican, one of the defendants, R. O. Myers, went to the house of witness under great agitation and excitement, and entered one of the rooms and commenced loading a gun.

That upon cross-examination defendants asked witness what was said by defendant Myers at that time, as explanatory of his excitement and purpose in loading said gun; which was objected to by the counsel for the State, which objection was sustained by the court, and said witness was no.t permitted to testify as to the declaration of said Myers at the time.” In Monroe v. The State of Georgia, (5 Ga.

Rep., 133-4,) the court say : “ When the declarations of a party accompany the act and are a part of the transaction, they are admissible.” And “ that to be a part of the res gestee, the declarations must have been made at the time of the act done, which they are supposed to characterize, and well calculated to unfold the nature and quality of the facts they intended to explain.” (Russell v. Fresbie, 19 Conn. Rep., p. 205, and cases there cited; Greenleaf on Evidence, vol. 1, §§ 108, 109, 110, 111, 113, 114; Roscoe on Crim.

Ev., pp. 22, 23.) The statement of Myers, at the time, explanatory of his excitement, and of his purpose in loading the gun, were .of the res gestae of the facts proved by the State to criminate Myers. They were part and parcel of the facts, and it was error not to permit the defense to prove them upon cross examination. With the conclusions drawn from the particular premises assumed in the opinion of the majority of the court I fully concur; but as that opinion wholly ignores this (as I esteem it) fatal error, I respectfully dissent