W. R. Orman v. The State, 22 Tex. Ct. App. 604

Hurt, Judge. Appellant was convicted of murder of the second degree and sentenced to the penitentiary for fourteen years, for the killing of W. E. Houghston, in the city of Waco, on the eighth day of September, 1885. We will here insert such facts as will present in a clear light the first error assigned by counsel for appellant. Appellant was a man of family, having a wife, mother and sister. He was a saloon keeper, and his residence was about the distance of one block from his saloon. Deceased was a hack driver, and it appears was living with a negro woman.

Appellant and deceased were upon friendly terms, and were heard to joke each other a short while before the day of the killing.

Early in the morning, between five or six and nine o’clock of the day of the killing, the deceased went to the saloon of appellant two or three times, looking for appellant, and stated openly, boldly, loudly and repeatedly, so that the persons doing business near appellant’s saloon heard him, that appellant had accused him of lying up with a negro woman; that appellant was a d—d son of a b—h, and that he intended to kill appellant before twelve o’clock that day; that said negro woman was as good as appellant’s mother and sister, and that appellant’s mother and sister were negro f—k—ng bitches, and that they had in this way accumulated and made all the property that appellant had.

Deceased had a pistol with which he said he was going to do appellant up. He said: “We hack drivers are hell when we get started, and we’II do what we say we will.” On one of the occasions spoken of, deceased drove up to appellant’s saloon with two negroes in his hack, and said those negroes had had sexual intercourse with appellant’s mother and sister, and that he was going to make them tell appellant so. Deceased drove by appellant’s residence and drove near the house and looked in, and appeared to be mad, and was holding his lines in his left hand, with a pistol in his right hand by the side of his right leg.

He passed by, and was soon seen by another witness, still having the pistol down by the side of his leg. He soon returned, and as he was passing by appellant’s residence, holding his reins in his left hand, with his right hand down by his side, on the opposite side from appellant, he met appellant, who was going from his saloon to his residence, and appellant asked deceased if he would take back what he had said about his mother and sister. Deceased said “ Ho,” and at that moment appellant was seen to throw up his left hand, and then the shooting occurred.

Deceased received two shots, from which he instantly died. The horses ran away with the hack of deceased. There was a woman in- the hack. After deceased went to appellant’s saloon, as before stated, in appellant’s absence, appellant went from his home to the saloon —about nine o’clock—and ordered his breakfast. (There was a restaurant in connection with the saloon.) He sat down to eat his breakfast, and just as he sat down he was told that the deceased had been there looking for him, and was also told that deceased said his (appellant’

s) mother and sister were negro f—k—ng bitches, and that they had made in that way all the property appellant had. Appellant got up without eating his breakfast and said: 15 No man can say that about my mother and sister and live.” He sat down behind the counter with his face in his hands, and appeared to be crying and in trouble. He ,then went out, and a while afterwards came back and got his pistol and put it in his pocket. After appellant was informed of what deceased had said about his mother and sister he went to consult his attorney (M. D.

Herring) about the matter, concerning what the punishment would be for killing in such cases. He appeared to be intensely excited—more so than the attorney had ever seen him before, and he had known him from his childhood. He told his attorney what Houghston had said about his mother and sister, as before stated, and asked him what the law was if he killed Houghston. The attorney read him the statute concerning killing, upon the use of insulting words towards a female relative, and advised him to have no trouble with Houghston.

He said that was all he wanted to know and started away with his eyes filled with tears. The killing occurred soon afterwards. Appellant went to the court house and surrendered himself immediately after the killing. M. D. Herring was called as a witness for the State while he was conducting the defense on the trial of the case, and, over objections of defendant, testified, in substance, as follows: Appellant came to my office on the morning of the killing and said he wanted to consult me privately, and requested my law partner, Mr. Kelley, to step into the other room of our office,«which he did.

Appellant appeared to be intensely excited—more so than I had ever seen him before. I had known him from his childhood. He told me that he had just heard that deceased, Houghston, had been to his, appellant’s, saloon and said that his, appellant’s, mother and sister were whores, and that they had been cohabiting (he used a vulgar phrase) with negroes, and that they made in that way all appellant had, and asked me what the law was if he killed Houghston.

I then read him the statute of the State concerning killing upon the use of insulting words toward a female relative, and I advised him not to have any trouble with Houghston, that he was a trifling, worthless fellow. Appellant then got up to leave, saying that was all he wanted to know, and, as he started off, I noticed that his eyes were filled with tears, and I again, and then again, advised him to have no trouble with Houghston, that he, appellant, had had trouble enough; but he paid no attention to me, but went away. Soon after I started out to pay some dues at the T. B.

A. office, and while on the street saw a runaway carriage and horses, and immediately thereafter learned that appellant had killed Houghston. This evidence was objected to because the consultation with witness, and his advice thereon, was privileged, because appellant consulted witness as his attorney and confidential ad-visor. Was the evidence of M. D. Herring, under the surrounding facts, privileged communications, and hence not competent? “ Communications from clients to attorneys are privileged op the ground of public policy, with a view to the safe and proper administration of justice.

The protection is not qualified by any reference to proceedings pending or in contemplation. It is adopted out of regard to the interest of justice, and from the necessity of free, unrestrained intercourse between counsel and client. It is better in our judgment to adhere to the rule in a broad and liberal sense, than to weaken its force by exceptions.’ (Crisler v. Garland, 2 S. & M., 136.) After a very careful examination of all the authorities accessible to us, we are led to the conclusion that the above rule applies alone to civil cases. What, therefore, is the rule in criminal cases? In The Queen v.

Cox, decided on December 20, 1884 (5 Am. Crim. Rep., 140), most, if not all, the English cases bearing upon the question at issue were cited and commented upon by the court. In that case Judge Stevens wrote a very lengthy opinion, very carefully comparing the decisions which had before been made upon this subject. In a great many cases he gives a concise statement of the facts under which the question was presented, and from his opinion and the cases therein cited we state the following as the rules: 1.

To be privileged the communications must pass between the client and his attorney in professional confidence and in the legitimate course of professional employment of the attorney. 2. If the communications are by the client made to the attorney before the commission of the crime, and for the purpose of being guided or helped in its commission, they are not privileged. 3. Nor does the fact that the attorney was wholly without blame in any particular whatever affect the second rule.

We are aware that this third rule is in conflict with quite a number of able opinions, but it is supported by the above case, and, we believe, by the weight of authority. Now, let us concede (it being, in fact, absolutely true) that M. D. Herring, the attorney, was wholly without blame, no party in any respect to the homicide, yet was it not the object of appellant, in his communication with his attorney, to obtain information with respect to a contemplated crime? And did he not obtain such information as would induce rather than prevent him from the commission of the crime?

It is true that the advice of the attorney was strongly calculated to prevent the crime, but from the conduct of appellant it clearly appears that he was seeking law and not advice as to what he would do. This, it seems to us, was very firmly settled in his mind, and especially if the law should be to his liking. For, after the statute had been read to him by which he was informed that the killing would be reduced from murder to manslaughter, he seems to have been satisfied, and was willing to kill Houghston and risk such punishment.

Let us suppose that Herring had informed him that he would be guilty of murder of the first or of the second degree, stating to him the punishment for each offense, would it have been as probable that he would have killed Houghston as under the law as truly given to him by Herring? Under the facts surrounding the interview between appellant and Herring, we unhesitatingly answer that it would not. Then, under the circumstances attending this interview, it is evident that its effect was to induce (though not so intended by Herring) the appellant to kill Houghston and risk being convicted of manslaughter.

This being the effect, the communications between Herring and appellant were not privileged. (Green v. Cox, 5 Am. Crim. Cases, 140, and cases therein cited.) Appellant relied upon insulting language toward female relatives, his mother and sister, to reduce the homicide from murder to manslaughter.

Upon this subject the learned judge, when applying the law directly to the case, submitted to the jury the following instruction: “If you believe from the evidence, beyond a reasonable doubt, that the defendant did unlawfully kill William Houghston by shooting him with a pistol, and that the same was done under the immediate influence of sudden passion (as hereinbefore defined) arising from an adequate cause, such as insulting words or conduct of the said Houghston toward female relatives of defendant, you will find defendant guilty of manslaughter. ” .

The objection to the charge urged by appellant is that it requires the killing to take place under the immediate influence of sudden passion. If this be error it is not cured in any other part of the charge, but, on the contrary, it also occurs in the definition referred to in this part of the charge. Under the facts of this case, or, in other words, under the grounds relied upon by the defendant to reduce the killing to manslaughter, is it error to instruct the jury that the killing must take place under the immediate influence of sudden passion?

If the defendant hears of or witnesses the insulting language or conduct, he must act at once; in which case the passion would be sudden—springing at once from the cause of provocation. But let us suppose, as was the fact in this case, that the defendant was not present, did not hear the insulting language nor witness the insulting conduct, most evidently his passion could not suddenly arise from the provocation—provoking cause. How the provocation, the adequate cause, must produce the passion, and for the passion to be sudden it must spring directly and instantly from the provocation.

How could this be the case when defendant may not have been informed of the provocation for several days, weeks or months after the giving of the provocation ? Again, must the passion suddenly, instantly arise in the mind of the defendant upon being informed of the insulting language or conduct, and remain up to the time of the homicide? Owing to the peculiar nature of this provocation, and when the question is viewed in the light of

Article 597, Penal Code, we are of the opinion that the last question must be answered in the negative. The language used by Houghston toward the mother and sister of appellant was calculated to arouse the passion of any human being, save a complete moral wreck. And while with some persons, upon being informed of such language, the passion would spring at once into existence, with another, the more he reflected the higher, the greater would be the passion; for upon reflection the insult, with all its blighting consequences (not only the immediate but for all time to come), would be comprehended.

Hence, there may be cases, owing to the provocation and disposition of the party offended, in which the passion may not suddenly arise upon being informed of the insulting language or conduct, but after reflection and before the killing he may be completely under the control of the passion produced by such provocation; and especially would this be the case upon meeting with the party giving such an insult.' Now let us briefly notice

Article 599. Insulting words or conduct toward a female relative of the party killing is deemed an adequate cause—cause to produce the passion. The cause is the words or conduct. There must be passion produced by the causé. When must the passion arise ? If the defendant is not present, does not hear the words or witness the conduct, we answer, before the killing.

Article 599 provides that when it is sought to reduce the homicide to manslaughter by reason of this character of provocation or cause, it must appear that the killing took place, if the defendant hears the words or witnesses the conduct, immediately upon the happening of the conduct or the utterance of the language; but, if defendant was not present, did not hear the words or witness the conduct, so soon thereafter as the defendant may meet the person killed, after being informed of such insults.

We are of the opinion that in a case in which defendant was not present, did not hear the words or witness the- conduct, to reduce the homicide to manslaughter it must appear that the party killed used insulting words or conduct toward a female relative; that before the homicide defendant was informed of such insults; that he killed by reason of the passion produced by the insult, the words or conduct, and from no other cause.

But it may be contended that, if error is conceded in the charge just mentioned, this is cured by another part of the charge, to wit: “By the expression ‘under the immediate in fluence of passion’ is meant the act must be directly caused by the passion arising out of the provocation, which may have been given at the time or before the killing.

It is not enough that the mind is merely agitated by the passion arising from some other provocation, or a provocation- given by some other person than the party killed.” To my mind the evident object of this part of the charge was for the purpose of instructing the jury that the killing must be caused directly by the provocation (whether given at the time or not); that, though the mind may be agitated by passion, yet, unless agitated by passion arising from a certain provocation, and that said provocation must have been given by the party killed, the law would not reduce the crime to manslaughter.

In this part of the charge there is no attempt on the part of the learned judge to convey the idea that the passion may arise at any time before the killing. This was not the subject nor object of the charge under discussion. The writer is of the opinion that there is reversible error in this part of the charge just discussed. My brethren do not agree to this.

There was evidence calling for a charge upon the law of self defense, and among other things, the learned judge submitted the following: “Homicide is justifiable in the protection of" the person against any unlawful and violent attack, but in such case all other means must be 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 and violent attack.” The learned judge begins the law of self defense with this general proposition, and it will be seen that it is unconditional, and does not refer to any other clause of the charge upon this subject.

The true rule upon this subject is this: If, to protect the person against an unlawful and violent attack, and such unlawful and violent attack is not mutual, or is not such as is described in

Article 568, Penal Code, then the party must resort to all other means to prevent the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack. Referring to the evidence bearing upon this subject it is seen that this charge was not called for, and should not have been given at all, not-even if correctly given. For, if deceased made an attack upon the person of defendant it was á murderous attack, coming clearly within the provisions of

Article 568, and, in order to protect himself from such attack, he is not required to resort to other means to prevent the threatened injury, nor to kill his adversary while in the very act of making such attack, but may kill at once. While it is true that the law of self defense in preventing murder is correctly stated in the twentieth paragraph of the charge by simply giving in charge to the jury the statute, still there is no qualification made to the obnoxious charge contained in the sixteenth paragraph except by inference.

The jury may have made the proper inference and engrafted upon the sixteenth paragraph, the proper limitations and qualifications, but this never should be required of a jury. As the sixteenth paragraph of the charge heads the law of self defense, and is general and without qualification, it is highly probable that the jury qualified all subsequent paragraphs of the charge upon self defense with the instructions contained in the sixteenth paragraph.

This view is strongly supported by the fact that there could be no controversy as to the nature of the attack, if any, made by deceased upon defendant, it being nothing less than a felonious attack, or with intent to murder, and nothing short of this. Opinion delivered December 17, 1886.

Again, if the evidence tended to show an attack of less magnitude than to murder, then a majority of this court holds that the court should have instructed the jury that if the attack produced in the mind of defendant a reasonable expectation or fear of death, or some serious bodily injury, then the defendant would not be required to resort to other means to prevent the threatened injury, nor kill while his adversary was in the very act of making the attack, but might kill instantly. There is no such charge as this submitted to the jury.

We are of the opinion that notwithstanding the charge of the court of which we have been treating was not at the time excepted to, nor instructions requested, yet, when viewed with reference to the whole record, there is strong probability of injury to defendant. The judgment is reversed and the cause is remanded. Reversed and remanded.