Green Lynch v. The State, 24 Tex. Ct. App. 350

White, Presiding Judge. This appeal is from a judgment of conviction for murder of the second degree for the killing of one A. J. Guess, whose wife was a niece of this appellant. There are several bills of exceptions as well as assignments of error presented in the record, which attack certain rulings of the trial court upon questions of evidence and certain portions of the charge given the jury, as also the refusal to give certain requested instructions asked for defendant. We propose to notice only such matters complained of as are considered of moment on this appeal. I.

Defendant complains that the court erred in refusing to permit him to prove his own statements and declarations with regard to the homicide, made within fifteen or twenty minutes after the killing, and after he had gone in a wagon some twelve hundred yards from the place of the killing.

This identical question occurred in Stephens’s case, 20 Texas Court of Appeals, 255, and it was there held that “ declarations of a defendant concerning the crime charged against him, made ten or fifteen minutes after the commission of the same, and after he had gone a distance of four or five hundred yards from the place of-the homicide, can not be treated as res gestae, and are, therefore, not admissible in his behalf.” “Declarations or acts of a defendant in his own favor, unless part of the res gestae or of a confession offered by the prosecution, are not admissible for the defense.” (Walker v.

The State, 13 Texas Ct. App., 619.) II. For the purpose of showing that the meeting with deceased was unpremeditated and accidental, defendant proposed to prove that, on the Saturday before the Monday when the killing occurred, he had told the proposed witness, Rogers, that he would be at the postoffice at Elwood on Monday evening to get his mail. This evidence was claimed to be admissible in connection with other evidence which he had introduced, showing that he was on his way to Elwood at the time the difficulty occurred, and tended also to establish that fact.

Whatever may have been the theory of the State at the beginning of the trial with regard to this matter, we are of opinion that the evidence upon that point is positive and uncontradicted, to the effect that defendant had started to and was on his way to the Elwood post office, that he was going for his mail, that he was traveling the accustomed and most direct route; and there is no testimony that he had any purpose to seek and bring on a difficulty with deceased. True, he had a double barreled gun with him.

But this he had a right to carry, and, if he was carrying it on account of the threats deceased had made against his life, this did not lessen but only emphasized the right. He did not go out of his road or way to meet deceased. On the contrary, when he found that deceased had unhitched his horse from the plow and was rapidly following the wagon in which he was riding, he urges the driver to go faster “to get out of his way,” and they do get to the gate, close it, and are outside the field when the deceased overtakes them.

Now, if under these circumstances it was still an open question as to whether he was going to the post office or not, then the excluded evidence was perhaps material and admissible as an additional fact going to prove it. If it was not an open or disputed question, the evidence was immaterial. In our opinion enough has been shown to establish its immateriality, and if this had been the view of the learned trial judge his ruling would have been correct.

Such, however, does not appear to ha ve been the case, because we find in the fifteenth paragraph of his charge, which is made a special ground for exception by .the defendant, that the jury are instructed that “the defendant had the right to go to the post office, or any other place he desired to go for a lawful purpose, but if he started to or by the house of the deceased merely to get an excuse to kill him, or with the intention of seeking or getting into a fatal rencontre with the deceased, and thus got into the difficulty, then the defendant can not justify the homicide even though his life was put in peril.” With the testimony as disclosed in the record before us, there was no doubt as to his purpose and intention, or that it was a lawful one; he was, as all the witnesses who testify on that point say, going to the post office.

If this be so, then this instruction, in so far as it questioned his intention and purpose, was not warranted by evidence, and was calculated to prejudice him with the jury by impressing them with the idea that, in the opinion of the court, there was serious doubt upon the subject. To our minds, one of two things must be apparent^either that the evidence excluded was material and should have been admitted if this instruction was warranted, or the instruction was itself unwarranted, because there was no disputable matter upon which to predicate it.

In either aspect of the case the error is both important and serious. With the lights before us, we would say the ruling upon the evidence was correct, and the instruction erroneous. “However correct a principle of law may be in the abstract, it is error to give it in charge where there is a total want of evidence to support the phase of case to which it is applied.” (Conn v. The State, 11 Texas Ct. App., 390.) “If the court assumes and charges on a theory not raised or indicated by the evidence, it is radical error and fatal to a conviction.” (Ross v. The State, 10 Texas Ct. App., 455; Taylor v.

The State, 13 Texas Ct. App., 184; Hardin v. The State, Id., 192; Stewart v. The State, 15 Texas Ct. App., 598.) A charge should be confined to the facts in evidence. (Boddy v. The State, 14 Texas Ct. App., 528; Mayfield v. The State, 23 Texas Ct. App., 645.) III. A most vigorous attack is made, in the able brief of counsel for defendant, upon that portion of the charge of the court relative to threats made by deceased against defendant. It is insisted that whilst, in the twelfth paragraph, the court correctly announced the law as declared in

article 608 of our Penal Code, that it was error in paragraphs thirteen and fourteen to interpolate the word “immediate,” and thereby qualify the word intention as used in the statute.

It is declared by the statute that threats afford no justification for homicide, “unless it be shown that, at the time of the homicide, the person killed, by some act then done, manifested an intention to execute the threat so made.” The jury were charged by the court that threats would afford no justification, unless the deceased “manifested an intention by some act done at the time showing an immediate intention to execute the threats.” 1' Applied to the facts directly attendant upon the killing, it is contended that the use of the word “immediate” was not only unauthorized but deleterious in the extreme.

Deceased was unarmed. He had dismounted to open the gate, had come through' and was leading his horse, and defendant, who was still upon the ground, accosted him: “Hello, Jack; what are you in such a hurry for?” The reply was: “If I get my gun I will show you what I am in a hurry for.” His gun was at his house, some forty or fifty yards distant. Defendant went to the west side of the wagon and took out his gun, and, as deceased started round the left side of the wagon, defendant presented his gun at him and said: “Sir, wilt!

You have been following me, and threatened and tried to kill me as often as I will allow you to.” Deceased turned and went round the east side of the wagon, still leading the horse, and said again: “If I get my gun I will kill you.” Defendant walked to the head of the mules to the wagon, on the left side, and stopped, and when the deceased came opposite from the east side, defendant said: “Hold up,” raised and presented his gun, and, as deceased said: “Shoot, dog on you,” he fired both barrels in quick succession, killing deceased instantly.

Previous and deadly threats on the part of deceased were proven, and also .the fact that he was a violent man and one likely to execute his threats. It was the theory of the defense that deceased had seen de. fendant passing in the wagon, had followed him rapidly, and, when shot, was going to his house, some forty or fifty yards distant, to get his gun and with it execute his threats; and that defendant, in his legitimate right of self defense, had the right then and there to anticipate and shoot him.

A special instruction requested for defendant, and which was refused by the court, embraced this theory, as follows, viz: “If you believe from the evidence" that, at the time of the killing, Guess was advancing towards defendant and toward’s his (Guess’

s) house, with the avowed intention to get his gun and attack defendant, and take his life or do him some serious bodily injury, and if you further believe that the facts and circumstances in evidencé were such as to create in the mind of defendant a reasonable belief and apprehension that such was the intention of Guess, * * then defendant might act in advance and make the attack upon Guess.

Nor was it necessary that there should in fact be real (danger to defendant at the time of the killing, provided the facts and circumstances in evidence were such as to produce in the mind of defendant a reasonable fear or expectation of death or serious bodily injury.” As before stated, the language of our statute (Penal Code, art. 608) is that threats afford no justification “unless it be shown that at the time of the homicide the person killed, by some act then done, manifested an intention to execute the threat so made.’’ In Penland’s case (19 Texas Ct.

App., 365) the doctrine of self defense ■ enunciated by our Supreme Court in Lander v. The State, 12 Texas, 462, is quoted approvingly, as follows: “The belief that a person designs to kill me will not prevent my killing him from being murder, unless he is making some attempt to execute his design, or at least, is in apparent situation to do so, and thereby induces me reasonably to think that he intends to do it immediately (citing 4 Iredell, N. C., 409). Ho contingent necessity will avail.” In Weaver’s case (19 Texas Ct.

App. 547), speaking of the doctrine of self defense, it is said that self defense “is a defensive, not an offensive, act,” and that “to justify the destruction of human life, the danger must not be problematical and remote, but (apparently) evident and immediate And, again: “The necessities of self defense are limited to the immediate resistance of (apparent) aggression, and the apprehension must have been excited by (acts evincing) an actual assault.” “The danger to be averted must be apparently immediate, pressing, imminent and unavoidable.” (See Hinton v. The State, 24: Texas, 454; Holt v.

The State, 9 Texas Ct. App., 666.) In Jones v. The State, 76 Alabama, 8, it is held that, to “establish the plea of self defense in a case of homicide, the defendant must have entertained at the time an honest belief in the existence of a present necessity on his part to kill in order to save his own life, or to prevent the infliction of grievous bodily harm, and the circumstances must have been such as to impress the mind of a reasonable man, under the same state of facts, with a belief of such imminent peril and urgent necessity.” In The People v.

Westlake, 62 California, 303, the rule announced is that “ past threats or conduct of the deceased, how violent soever, will not excuse a homicide without sufficient present demonstration to authorize the belief that the deadly purpose then exists, and the fear that it will then be executed.” (See also Id., 204.) And in The People v.

Tompkin, 62 California, 408, it is held that there must be such a demonstration of an immediate intention to execute the threat as to induce a reasonable belief that the party threatened^ will lose his life or suffer serious bodily injury unless he immediately defends himself against the attack of his adversary.” In The State v.

Horne, 9 Kansas, 119, it is said: “There must not only be reasonable ground to believe, but tfle purpose to execute the design must be accompanied by some attempt to execute it, or the person must at least be in an apparent situation to do so, and so induce a reasonable belief that he intends to do it immediately.” (Same case, 1 Crim. Law Rep., Green, 718; see also The State v. Clifford, 5 Crim. Law Mag., 242.) We are of opinion that a proper construction of the language of our statute (Penal Code,

article 608) is that the act done by deceased manifesting his intention to execute his threats must be such an one as shows an immediate intention—“at the time”— “then done,” and not an intention dependent upon some other contingency. Deceased’s language showed that he had no such immediate intention, but he told defendant -to wait until he got his gun, which was in his house, forty or fifty yards away.

In the light of the authorities cited, and our view of the proper construction of the statute, we do not think the charge of the court defective in the particular complained of; and, judged by the same rules of law, we think it must be apparent that the special requested instruction was not the law, and that, consequently, there was no error in refusing it. Opinion delivered November 23, 1887. Other questions presented on this appeal are of comparatively but little moment, and will not be discussed.

Because the charge of the court in the fifteenth paragraph, as is previously shown, prejudicially instructed the jury as to a phase of the case unwarranted by the evidence, the judgment is reversed and the cause remanded. Reversed and remanded.