Needham Branch v. The State, 15 Tex. Ct. App. 96

Willson, Judge. There was no error in overruling defendant’s motion in arrest of judgment, the indictment being, in all essentials, sufficient. Defendant Branch shot and killed Bill Stewart, shooting once with a pistol. It was dark, or about dark, when the homicide occurred. John Sample, Alex. Monroe, Pad Lout, Clabe Lout, and the defendant, were in a wagon together, traveling from the town of Center, in Shelby county, to their homes. Deceased and Walker Sample, who were traveling on horseback, rode up behind the wagon. Deceased was armed with a double barrel shot gun, and was drunk.

Deceased called out to Clabe Lout, who was driving the team to the wagon, to stop. Walker Sample, who was with deceased, told Clabe Lout to drive on—that deceased was drunk, and he could do nothing with him. Deceased then said: “Hold on, Clabe, or I will shoot into the wagon and kill the last one of you,” and attempted to shoot but was prevented by Walker Sample. The wagon stopped, and deceased rode up to it and said, talking to John Sample- “I have been run over in this county ever since I have been in it, and if there is any one in the wagon that has got anything against J. P.

Stewart, belch it.” When deceased said this he attempted to shoot John Sample with the gun, and also to strike him with it, and was prevented by Walker Sample, who got the gun away from him, and, going off a few steps, discharged the gun. When Walker Sample took the gun from deceased, defendant said to deceased: “I am some horse myself. If you want to fight, fight a man, and not a cripple.” John Sample was a crip, pie.

Defendant then got out of the wagon and walked to the rear end of it, and deceased dismounted from his horse and advanced towards the defendant, and when he had reached within a few feet of him defendant shot and killed him". Defendant shot almost instantly after Walker Sample had discharged deceased’s gun. Defendant and John Sample were cousins, and had been raised up together from boyhood. When deceased presented the gun at John Sample, and when Walker Sample got it away from him, it was cocked. It was proved that when drunk the deceased was a man of violent and dangerous disposition.

Defendant proposed to prove, further, that the general reputation of the deceased was that he habitually carried a pistol.

This proposed testimony was objected to by the State, and the objection was sustained because “it was not shown by the evidence that deceased had any arms on his person, nor that he made any gesture as if to draw a weapon, or did any act which the habit of carrying pistols would serve to explain.” In rejecting this evidence the learned judge doubtless based his ruling upon the doctrine announced in Horbach’s case, 43 Texas, 242, in which case the evidence showed that, at the time Horbach fired the fatal shot, the deceased was making a movement with his hand as if to draw a pistol.

It was there held that evidence of the general character of deceased that he was a violent and dangerous man and in the habit of carrying a pistol was admissible, to explain the movement of his hand. In the case before us the evidence shows no act on the part of the deceased indicating that he was armed with a pistol, and was attempting to use it. But it is shown that at the time he was shot he was angry at the defendant, and was advancing upon him in a threatening manner, and that it was dark or nearly so, and that he had dismounted from his horse for the purpose of engaging in a fight with defendant.

Would the fact that the deceased was in the habit of carrying a pistol serve in any degree to explain favorably to the defendant the conduct of the deceased F If such was generally known to be his habit, the presumption is that the defendant was aware of it, and, being aware of it, would it be likely to influence him in repelling the attack which was then being made upon him by the deceased P It is reasonable to conclude that it would, although the deceased may have made no demonstration indicating a purpose to draw a pistol.

We do not think that the rule laid down in the Horbach case is to be restricted to the one act of seemingly attempting to draw a pistol or other weapon. It seems to us that the reason of that rule applies with equal force to any act reasonably indicating a present purpose on the part of the person slain to kill or do serious bodily injury to the slayer. In the case before us, we think the proposed evidence should have been admitted.

There is no.bill of exceptions in the record presenting the question as to the correctness of the ruling of' the court in admitting in evidence declarations, of John Sample, made after the homicide had occurred. That question, therefore, is not before us in such manner as we can determine it. We will remark, however, that such declarations would be admissible for one purpose only, if at all, and that purpose would be to impeach the witness John Sample, and, if admitted for this purpose, the jury should be instructed by the court that they were not at liberty to consider such evidence for any other purpose.

Several objections are, urged by defendant’s counsel to the charge of the court, and it is also contended that the court erred in refusing special charges requested by defendant. Without discussing in detail each of the assignments of error relating to the charge of the court, and the refusal of charges asked, we will notice such only as in our opinion are well taken.

One paragraph of the charge given to the jury is as follows: ‘1 When, therefore, an unlawful act is clearly shown to have been done, and it does not appear from the testimony offered by the State that it was done under circumstances which mitigate, excuse or justify it, it is for the defendant to show facts which excuse or justify it, so that a reasonable doubt at least may arise on the evidence as to his guilt.” Similar charges to this have several times been before this court in similar cases, and we consider it now well settled by the decisions of this court that they are objectionable, and constitute in most instances material error. (Ake v.

The State, 6 Texas, Ct. App., 398; Dubose v. The State, 10 Texas Ct. App., 230; Jones v. The State, 13 Texas Ct.

App., 1.) In the case before us, we think it was error to give the charge above quoted, and, this charge having been excepted to at the time it was given to the jury, it is not necessary to inquire further as to whether or not it was calculated to injure the rights of the defendant, Defendant requested the following charge to be given to the jury, which was refused, viz: “If it reasonably appeared by the acts or by words coupled with the acts of the deceased, that it was the purpose and intent of the deceased to take the life of the defendant, or do him some serious bodily harm, the defendant was not bound to resort to all other means to prevent the injury, except to retreat, but on the contrary defendant had the right to slay him instantly without such resort.” In the charge given to the jury, they were instructed that the defendant must have resorted to all other means, save that of retreat, and that, unless he did so, he could not avail himself of the plea of self-defense.

The charge of the court, as given to the jury, and the charge asked by the defendant and refused, are in direct conflict with each other upon the question as to whether or not, when a person is assaulted under such circumstances as make it reasonably appear to him that the purpose of the assailant is to kill or do him seriously bodily injury, he must resort to all other means save retreat to avoid the threatened injury, before he will be justified in slaying the assailant. It is unnecessary that we should enter upon a discussion of the question thus presented.

It has heretofore, several times, been fully considered and plainly determined, and it may be regarded as now settled law that, when a person is attacked under such circumstances as reasonably indicate a purpose and intent on the part of the attacking party to murder or maim him, or to do him serious injury, the person so- attacked, or any person who interferes for him, is not compelled to resort to other means for the prevention of the injury, but may slay upon the spot, being responsible for any mistake if the right of resistance or interference is exercised under circumstances not sustained by law. (Kendall v.

The State, 8 Texas Ct. App., 569; Ainsworth v. The State, Id., 532; Foster v. The State, 11 Texas Ct. App., 105.) We think the court erred in its charge, and erred in refusing the special charge requested by the defendant. In one other respect we think the charge of the learned judge is deficient. It very properly instructed the jury that, if the defendant provoked the attack of the deceased, or entered willingly into a fight with the deceased, he could not avail himself of perfect self-defense.

In this connection, under the evidence in this case, we think the court should have further instructed the jury that, if they believed from the evidence that the deceased was making or about to make an attack upon John Sample, with the purpose and intent to kill Sample, or to do him serious injury, or that if, from the conduct of deceased, it so reasonably appeared to defendant that such attack was being, or was then about to be made, he, the defendant, would have the same right to prevent the injury threatened that Sample would have to prevent it.

If it was the purpose of defendant in interfering in the difficulty, then pending between the deceased and John Sample, to prevent deceased from killing, or seriously injuring, Sample, then such interference on his part should not be regarded as provoking the attack of deceased, or as a willing entry into a fight with him. A special charge, calling the attention of the court to this phase of the case, was requested by defendant and refused by the court. We think the evidence demanded a charge from the court elucidating this particular feature of the issue of self-defense. Opinion' delivered November 21, 1883.

Because of the several errors we have noticed, the judgment is reversed and the cause remanded. Reversed and remanded.