James Tillery v. The State, 24 Tex. Ct. App. 251

Willson, Judge. I, There can be no question but that the evidence in this case fairly and fully raises the issue of self defense. It clearly appears that the deceased had, for some time previous to the fatal rencounter, been at enmity with the defendant; had repeatedly, and apparently without reasonable or probable cause, charged the defendant with the crime of arson; had threatened to take the life of the defendant; had actually conspired with one Tabler to take defendant’s life, and was acting together with said Tabler at the very time of the homicide, in pursuance with and in furtherance of said conspiracy.

He and Tabler also endeavored to induce others to enter into said conspirdcy with them, under the guise and protection of an oath bound, secret organization called a “vigilance committee.” On the night before the homicide, at the instance of the deceased and Tabler, a meeting of this “vigilance committee” was held at the residence of deceased, at which it was proposed and urged by deceased that the committee should proceed at-once, on that very night, to execute the defendant, but none of the committee present would agree to this proposition except Tabler.

Early on the next morning, just before the homicide, deceased went to his place of business, and through the telephone summoned Tabler to his presence. Tabler responded promptly, and the two had a private conference. Very soon after this conference the deceased, mounted upon his horse, and armed with a six shooter, rode up by the side of defendant, who was riding along a street in the town of Longview, and, after accosting him, again accused him of the crime of arson, and it was here that he received the fatal shot at the hands of the defendant.

We do not think" it can be doubted, from the evidence before us, that the deceased and Tabler had resolved upon taking the life of the defendant at the first favorable opportunity; that they weré prepared for and seeking such opportunity; and that, on the occasion of the homicide, the deceased provoked the difficulty which resulted in his death, with the intention at the time of killing the defendant. By the evidence we are fully informed of the condition of the mind of deceased towards the defendant, and as to his intentions and design to wreak vengeance upon him in a deadly manner.

He is surrounded by a halo of light, discovering his malice and inward intention, and illustrating his acts. How stands the case with the defendant? His presence in town in the early morning is satisfactorily accounted for; he was there on a matter of business with the county judge. At home he left a sick wife with an infant only one week old. He has attended to his business with the county judge, and, mounted upon an inferior pony, is traveling along a public street. On the night previous he had been informed that the deceased had threatened on that very night to “fix” him before the next mornjng.

He was well aware of the bitter enmity of the deceased towards him, although he may not have known of the conspiracy between deceased and Tabler to take his life. He was armed with a pistol, and, in view of the threat which had been communicated to him the night previous, it can not be said that the fact of his being thus armed indicated anything more than that, should occasion require, he would defend himself against the threatened danger. There is nothing whatever in the evidence to indicate that he was seeking a difficulty with the deceased.

Under these circumstances, the deceased rode up from behind, beside the defendant, and, accosting him, accused him again of the crime of arson. Defendant responded that he must retract the charge. Just then, one witness testifies, the deceased, who had ridden a little in advance of the defendant, turned in his saddle towards defendant, and placed his right hand to his right side as if to draw a pistol, when the defendant fired and shot him. A pistol was found on the body of deceased, on his right side, about where the witness saw him place his right hand.

Upon this evidence the trial judge very properly submitted to the jury the issue of self defense. It is earnestly contended, however, by counsel for the defendant, that the charge upon said issue is imperfect, erroneous and prejudicial to the defendant, and should have been supplied and corrected by special instructions requested by the defendant. Considering the charge on self defense with reference to the evidence bearing upon that issue, we are of the opinion that the objections urged to it are substantial and tenable.

There is not a particle of evidence fairly raising the issue that defendant had forfeited the right of self defense by seeking and provoking the difficulty, and it was erroneous and prejudicial to the defendant to submit that issue to a jury. In instructing the jury upon the law of apparent danger, the charge makes the right of self defense hinge upon the fact as to whether or not the defendant honestly believed at the time he acted that he was in danger of losing his life, etc. This idea of honest belief on his

part is presented three several times in the charge upon self defense; and, while being subject to the objection that it is made too prominent to the minds of the jury, is besides not a correct statement of the law. "The correct rule is that, if it reasonably appeared to the defendant, from his standpoint, from the circumstances of the case, that the danger existed,- and he acted under the reasonable belief that it did exist, he was justified in defending against it to the same extent and under the same rules permitted in case the danger had been real. (Willson’s Texas Crim.

Laws, sec. 978.) While it may be abstractly correct to require that the defendant’s belief of the existence of danger should be an honest one, it ■ is going too far, we think, to so instruct the jury, especially when such instruction is repeated so often, and especially, too, in view of the evidence in this case.

Another serious objection to the charge is that, in instructing the jury in relation to threats made by the deceased against the defendant, this portion of the charge is disconnected from that portion relating to self defense, when it formed a part of the law of the issue of self defense, and should have been given in immediate connection therewith.

In the position in which the instruction as to threats appears in the charge, the jury might reasonably have concluded that it had no connection with the issue of self defense, and the effect may have been that, in considering that issue, the jury entirely ignored the legitimate bearing of the threats thereon. The law of self defense, when invoked by the proof, should be given to the jury plainly, directly, connectedly and affirmatively, and in such manner as to show its applicability to the facts in evidence.

In this case, the facts in proof upon the issue of self defense are not complicated, and a plain, direct, affirmative explanation of the law applicable thereto should have been given. We do not think the court gave such a charge, and the failure to do so was, we think, calculated to, and probably did, injuriously affect the defendant’s rights. Defendant’s guilt or innocence hinged solely upon self defense, and it was all important to him and to justice that the law in relation to that issue should be fully and clearly explained to the jury.

The learned trial judge evidently desired and intended to perform this duty, but, as we have attempted to show, in material particulars failed to give the defendant the full benefit of self defense, and such failure, in view of the evidence in this case constitutes error for which the judgment must be reversed. II.

Whilst, in our opinion, it was competent for the defendant to prove, if he could, that the deceased had no probable cause for charging him with the crime of arson, and that deceased did not in fact believe said charge to be true, but that the cause of deceased’s enmity towards him was an entirely different matter than the arson, still, we do not think the court erred in refusing to permit the witness Campbell to answer the question propounded to him, as to whether, in an investigation he had made about the arson, he had found any evidence tending to connect the defendant with it.

The objection made to the question was that the answer thereto would be but the conclusion of the witness. This objection, we think, was properly sustained. If the witness had been called upon to state facts within his knowledge concerning the arson, and the defendant’s relation to those facts, such testimony would have been relevant and admissible in view of the other evidence in the case. III. It was not error to reject the proposed testimony of the declarations of Tabler. Said declarations were made some time after the homicide, and were not a part of the res gestee of the homicide. They were hearsay.

The fact that Tabler was a co-conspirator with the deceased in seeking to take the life of the defendant would not render such declarations admissible in behalf of the defendant. If the deceased or Tábler had been on trial for a crime committed in furtherance of such conspiracy, then the declarations of one, made pending such conspiracy and in furtherance thereof, would be admissible against the other. (Willson’s Texas Crim. Laws, sec. 1048.) But we know of no rule of law which would render admissible in behalf of the defendant the declarations of Tabler, made after the commission of the homicide. IV.

In his closing argument to the jury, counsel for the State went out of the record, in speaking of Tabler, to tell the jury about the circumstances of Tablet’s death—the manner in which, by whom and for what cause said Tabler had been killed, and why it was, and how it was that Tabler had killed one Teague, and several other matters in relation to said Tabler, about which there was no evidence.

Counsel for defendant promptly objected to these remarks, and the court overruled the objection, appending to the bill of exceptions his reasons for so doing, which are that defendant’s counsel had, in their address to the jury, severely ‘"denounced, as a coconspirator with the deceased, the said Tah*ler, etc.

As shown by the evidence in the case, counsel for the defendant were justified in so denouncing said* Tabler, and in so ' doing were but reproducing the evidence adduced on the trial. 1 Counsel for the State was not, therefore, warranted, in reply to ] this legitimate denunciation, in stating to the jury his individual ¡ knowledge of Tabler, and recounting to them the circumstances of the killing of Teague by Tabler, and the subsequent killing of j Tabler by the father and brother of the deceased Teague.

These ’ matters were wholly foreign to the case on trial, without any . support whatever in the evidence, and were calculated to oper- ! ate upon the minds of the jury prejudicially to the defendant. I These improper remarks, if there was no other error apparent in : this record, would, justify, if not demand, a reversal of the 1 judgment. Opinion delivered November 12, 1887. Y. A number of other errors are assigned, which we shall not discuss or determine, as they are of that character which are ; not likely to occur on another trial.

Because of the errors in the charge, and the improper remarks to the jury made by counsel ;for the State, above mentioned, the judgment is reversed and the case is remanded. Reversed and remanded.