Dave Lilly v. The State, 20 Tex. Ct. App. 1

White, Presiding Judge. Appellant was convicted of manslaughter, upon an indictment charging him with the murder of one Andy Flake. Appellant and deceased had made a trade for some hogs. Appellant paid a party by the name of Hooker. $3 to get up the hogs for him, and had also hired a mule to deceased for a dollar, which was to go in part payment of the hogs. After they were gotten up, the hogs were put into a pen at appellant’s home.

On the day of the homicide deceased and one Solomon went with a wagon to appellant’s house to get the hogs, deceased telling appellant that his, deceased’s, sister owned an interest in the hogs which she refused to sell. Appellant refused to let him have them until he had repaid him what he had paid on them. This the deceased was unable to do, and defendant refused positively to let him have them.

Deceased said he would take them anyhow; went to the pen and commenced tearing it down, when defendant, saying if he attempted to turn them out he would kill him, seized a board off the pen and struck him one or more licks with it. Deceased retreated some distance, about twenty-five or thirty feet, and picked up a tough oak stick about seven feet long, and proven to be a deadly weapon.

Both parties advanced, and defendant seized a pine pole about eight or ten feet long, and when in reach of each other, after one or two attempts to strike were made by both parties, which missed, they both struck each other, both being knocked down, and deceased having received the fatal injury from which he died after several hours.

Declarations made by defendant within ten or fifteen minutes of the difficulty, as to how it occurred, were admitted in evidence, and from these it appeared that before or about the time he seized the pine pole, he saw deceased throw his hand behind him, as he thought, to draw a knife. After the difficulty a pistol was picked up by the witness Solomon close to where deceased was lying, but between his body and the pen.

The reputations of both defendant and deceased for violence and peaceableness were put in evidence, and it appears that whilst defendant, who was a man over fifty years of. age, had the reputation of being a peaceable, quiet, law-abiding man, the deceased, who was a young, stout, able-bodied man, was regarded as violent, dangerous and overbearing. Besides the actors in the tragedy, Solomon was the only eye-witness present. On the examining trial had before a justice of the peace, it was with some reluctance that the witness testified to his having picked up a pistol at the place just after the difficulty.

On this trial he testified that, “after Flake fell, he picked up a pistol about three feet from Flake’s feet, as he lay on the ground, but does not know to which of the parties it belonged; but supposed it was Flake’s, and put it in the wagon amongst his other things.” Defendant proposed to prove by his witness Sam Davis that he was at Lilly’s house a very short time after the difficulty, and that witness was requested to go to a neighbor’s house to get him to go after a doctor; that witness put on and wore the State’s witness Solomon’s coat, and that he found in a pocket of said coat a pistol belonging to the deceased.

Upon objection this testimony was refused by the court. We are of opinion that under the circumstances shown this ruling was erroneous. The evidence was pertinent. Solomon had testified he did not know to whom the pistol belonged which he had picked up; it was proposed to show by this witness that it belonged to deceased. Defendant had stated that before he advanced and seized the pole he saw deceased throw his hand behind him, as he supposed, to draw a knife.

If, instead of a knife, deceased attempted to draw, or did draw, a pistol, it would nevertheless have strongly tended to corroborate the statement of defendant that he threw his hand behind him as if to draw a deadly weapon. Again, it was proposed by defendant to prove that deceased was a man who habitually bore arms or carried deadly weapons. This testimony was also disallowed on objection.

Taken in connection with his character as that of a dangerous, violent, overbearing man, and the fact that he was seen to throw his hand behind him just before or about the time defendant seized the pole and struck with it, the case comes directly within the rule declared in Hor bach’s case, 43 Texas, 242, wherein “ defendant, by counsel, sought to prove by questions to the witnesses that Thomas was in the habit of carrying deadly wreapons, and that Thomas, when intoxicated, was a quarrelsome and dangerous man.” The court held that it was error to refuse to allow the questions to be answered, and that the testimony was admissible.

In Williams v. The State, 13 Texas Ct. App., 102, this court said a defendant “ is entitled to prove, in explanation, extenuation or justification of his acts, the general character of the deceased as being that of a violent and dangerous man, or his general character in any other respect which would tend to determine the grade of the homicide by showing the intent actuating the defendant in its commission.” (See, also, 2 Bish. Crim. Proced., § 610; Moore v. The State, 15 Texas Ct. App., 1; West v. The State, 18 Texas Ct.

App., 640; Whart. on Homicide, § 606.) Homicide is only justifiable in the protection of property after all other means have been resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful or violent attack; and such homicide, to be justifiable, must be committed under the following circumstances, viz.: “ 1. The possession must be of corporeal property, and not of a mere right, and the possession must be actual, and not merely constructive. “ 2.

The possession must be legal, though the right of the property may not be in the possessor. “3. If possession be once lost, it is not lawful to regain it by such means as result in homicide. “4. Every other effort in his power must have been made by the possessor to repel the aggression before he will be justified in killing.” (Penal Code, arts. 572, 575.) It is a general rule that the owner of personal property has a right to use as much force as is necessary to prevent its forcible, illegal removal. (Whart. on Homicide (2d ed.), § 540.) But, says Mr.

Bishop, “a man commits a felonious homicide who inflicts death in opposing an unlawful endeavor to carry away his property. There is here the right to resist, but not to the taking of life.” (1 Bish. Crim. L. (7th ed.), § 876.) This is not the rule in this State, or, rather, our statute above quoted presents the exceptions to the rule, and under those exceptions the right, even to the taking of life in defense of the forcible taking or removal of one’s property, is nob only recognized but justified.

Article 572 of our Code, supra, expressly gives the right to "take life in the protection of property,'provided all other means have been resorted to for the prevention of the injury, and

article 575, which we have quoted, enumerates the circumstances which must concur in order to make the homicide justifiable. The facts in the case made it essential that the court should have charged the jury the law as declared by these statutes, and special instructions were asked by defendant embodying in-terms the language of the statute, which the court refused to give.

One of the instructions given by the learned judge to the jury in his application of the law to the facts is in these words, viz. : “If you believe from the evidence before you that the defendant killed the deceased, and that at the time of the said killing the deceased was in the very act of making a violent attack on the person or property of the defendant, and that by reason of such violent attack on the person or property of defendant the life of said defendant was putin peril,— that is to say, if the said violent attack of the deceased (if any was made) on the person or property of the defendant was such that the said defendant could not preserve his own life from destruction in any other manner or by the use of any other means (except by retreating, which the defendant was not required to do) than by slaying the deceased; or if the said violent-attack of the deceased (if any were made) on the person or property of the defendant, which, as you have already been told, must have been made at the time of the killing, was of such a nature as to produce' in the mind of defendant a reasonable expectation or fear of death or some serious bodily injury then about to be inflicted by the deceased by said violent attack on defendant, and if you further believe that said violent attack of the deceased was not provoked by the defendant, as previously or as may hereafter be explained, and that under these circumstances and conditions the defendant killed the deceased, then you should find the defendant not guilty.” We have italicised" portions of this instruction with a view of directing special attention to them. - It evidently appears from this charge that, in the opinion of the learned judge, no homicide in mere defense of property can be justifiable unless the assault or violence upon the property is at the same time accompanied with direct personal violence upon the owner,— in other words, that such violence must be joint, that is, against both property and person at the same time.

Manifestly this is a misconstruction of the statute with regard to the rights of a defendant who is acting alone or personally in defense of his property. His right to defend property is not dependent upon the fact that the injury to it is or is not accompanied by violence to himself. It is only where a third person interferes in behalf of one whose person or property is assailed, that the killing of the aggressor by' such third party will not be justifiable “ unless the life or the person of the injured party is in peril by reason of such attack upon his property.” (P.

C., art. 752.) This instruction was nowhere subsequently corrected in the charge given, nor was any other instruction given with regard to the right of a defendant to kill in defense of property. As stated above, a special requested instruction, embodying in terms our statutes, articles 572, 575, asked by defendant, was refused by the court.

Another instruction asked by defendant and refused was in these words, viz.: “ If deceased attempted to take defendant’s hog or hogs in the legal possession of defendant, and while attempting to do so defendant struck him with a board, not being able to prevent him from doing so otherwise, and having resorted to all other means at command to prevent the taking of the hogs, and deceased then and there, after retreating, returned and advanced upon defendant, making motions as if to draw a knife or pistol, and the acts of the deceased in this connection reasonably indicated to defendant that deceased intended to kill or inflict serious bodily harm upon him, and, while so advancing upon defendant, defendant struck him with a stick and killed him, be should be acquitted upon the ground of self-defense.” This instruction the appellant was entitled to under the facts as proven, and it was error to refuse it.

The questions involved in the case were: Was the killing in defense of property ?

If so, was the possession such as is required by the statute, and was every other effort made by the possessor to repel the aggression before the killing? (Penal Code, art. 575.) Inasmuch as defendant did use, first, reason, then threats, and lastly the board when deceased was in the very act of tearing down the pen, if the jury should conclude that such means were reasonable, proper, necessary, and the only means at the command of the defendant at the time, and that they effected the object in driving the deceased from the pen, then defendant up to that time would be justifiable and guiltless of any offense.

And if, after having thus been driven off, deceased, being armed or having armed himself,turned and with a deadly weapon, or one likely to produce death or serious bodily harm, advanced on defendant to wreak his vengeance upon him, defendant xvas not bound to retreat; and if it reasonably appeared to him that his life was in imminent danger, or that he was in danger of serious bodily harm, he had the right to strike in his own defense, and under such circumstances he would be justifiable upon the ground of self-defense.

If defendant was justifiable in the means he used to drive deceased from tearing down his pen and taking his hogs, then his subsequent acts would depend upon Whether or not he or the deceased was the wrong-doer in occasioning the homicide. If defendant, then he was guilty of whatever degree of offense he may have committed; if deceased, then defendant was justifiable. [Opinion delivered December 9, 1885.] For the several errors pointed out above and discussed, the judgment is reversed and the cause remanded for a new trial. Reversed and remanded.