Alexander Meuly v. The State, 26 Tex. Ct. App. 274

White, Presiding Judge. This voluminous record contains fourteen bills of exception reserved by defendant to rulings of the court at the trial, and twenty-four assignments of error .submitted on this appeal as grounds for reversal of the judgment. Our conclusion as to the course necessary to be taken in the disposition of the case on this appeal renders it unnecessary to discuss but one or. more of these supposed errors, as they are of a character not likely to arise on another trial in the-court below. Some of them become important in view of another trial, and to such alone we propose to confine our discussion.

I. Appellant moved for a change of venue in the case, and based his motion upon the first ground named in the statute (Code Crim. Proc., art. 578); that is, that there existed against him so great a prejudice in the county that he could not obtain a fair and impartial trial. His application was controverted by the district attorney under the provisions of

article 583, Code Criminal Procedure, and many witnesses were permitted to be-examined on both sides as to the existence or non existence of “prejudice” in the county. It is urgently insisted that such testimony was inadmissible and contravenes the obvious purpose and intent of

article 583, which, it is contended, limits and restricts the matters to be investigated, .solely to the credibility and means of knowledge of the defendant’s compurgators in the application. In other words, that, if the credibility and means of knowledge of the compurgators are alone authorized to be attacked, that this can not be done by proof generally of the non existence of prejudice, and that in such a contest it is error to go into a general investigation as to the-existence and non existence of prejudice.

How, what was the sole issue presented by defendant’s application and the supporting affidavits of the compurgators? It was the existence or non existence of prejudice. Their means of knowledge upon this matter was attacked. To show that such prejudice did not exist manifestly tends most strongly to prove that they did not possess correct means of ascertaining the truth of the matter.

Under this issue as to “the means of knowledge ” of the compurgators, it has been more than once decided that the “defendant would have the right to prove the existence of the prejudice by any witness besides the affidavit of his compurgators; and, on the other hand, the State would have the right to prove that no such prejudice did in fact'exist. The supporting affiants could be thoroughly tested as to their means-of knowledge by either party.” (Davis v. The State, 19 Texas Ct. App., 201; Pierson v. The State, 21 Texas Ct. App., 14; Smith v. The State, Id., 277; Scott v. The State, 23 Texas Ct.

App., 521; Henning v. The State, 24 Texas Ct. App., 315.) II. In our opinion the most serious questions presented for our adjudication are those calling in question the sufficiency of and the correctness of the charge of the court. A general and, as we believe, a most humane and just rule in the trial of one charged with murder is that the jury should, as far as possible, judge of the facts surrounding the homicide from the standpoint of the defendant.

In order to do this properly they must have submitted to them in the charge of the court all the law legitimately and fairly arising upon the evidence which he has adduced in his defense.

If the evidence be legal, competent and admissible, then, when the court has admitted it, whether the court may believe it true or false makes no difference, it becomes part of the case, and the jury alone have the right to say, under appropriate instructions pertinent to it, what degree of credibility shall be accorded the witnesses who have testified, and what weight shall be given to the testimony; and they also have the right to pass upon all issues legitimately arising upon such testimony. The statute enjoins it that the •charge shall distinctly set forth the law applicable to the case.

Hot alone the case as made by the evidence for the prosecution— the case as made by all the evidence; and especially is it the duty of the court to submit in its charge the law applicable to any favorable evidence comprising defensive matter in behalf of the accused. (Burkhard v. The State, 18 Texas Ct. App., 599.) “A defendant in a criminal case has a right to have instructions given, based on the testimony of his witnesses, although contradicted by the testimony of the prosecution.” (Partlow v. The State, 4 S. W.

Rep., 14.) Without discussing seriatim the several errors complained of as to the charge of the court in this case, and so ably argued in the briefs of counsel for appellant, we propose to set out substantially the testimony of the principal witnesses for defendant, and from that testimony deduce such applicable rules of law as, in our opinion, have been misconceived and overlooked in his instructions by the learned trial judge, and to which the defendant was entitled. One L. E.

Riverton, alias Reinhard, was the main witness for the defendant, and he testified to his previous acquaintance with defendant, and the circumstances which brought about a game of “pin pool” between one Burbank and defendant, at the Commercial saloon, in Laredo, where the homicide occurred, between four and five o’clock on Monday morning, March 29, 1886. This game commenced about nine o’clock Sunday evening, and Riverton was asked by both parties to count the game; which he did. He says: “About one a. m. a stranger came in and sat down at the pin board; this was Douglas, who was drank.

He made some remarks about the game from, time to time, and I was annoyed thereby, but Burbank said: *Pav no attention to him.’ At about two o’clock a. m., I noticed that Mr. Burbank was not playing fair. I suggested to Meuly that we go to bed and refused to count the game longer, and went and sat down. At about four o’clock a. m., Meuly was indebted to Burbank sixty dollars, and said to Burbank: ‘I will play you one more game, for sixty dollars.’ Burbank ■said: ‘Ho; I will play you for fifty dollars.

I ought to hare ten dollars for staying up all night.’ Meuly agreed to play for fifty dollars, and said he would give Burbank a check on Corpus. I was asked to keep the tally for them for these last games, which was to be the best two out of three. Burbank won the first horse. Meuly won the second horse.

At the commencement of the third game Meuly said: ‘Burbank, give the balls a square shake.’ The game proceeded, and when Burbank had made thirteen he shot at the three pin, knocked it down and also the one pin, and exclaimed: ‘Busted! ’ He shot again and made some pins, and Meuly exclaimed: T will make pool soon.’ Burbank had fifteen counted on his string, and, after some conversation, knocked down the four and three pins, and said: ‘Pool.’ Meuly said that was a mistake. I counted up ■seven and the fifteen, making twenty-two, and Burbank pulled out the nine ball from his pocket and threw it on the table.

Meuly said that must be a mistake. He took up his and Burbank’s ball and the bottle, and let the balls run out on the west side of the table, counting out fourteen balls, and said: ‘This is evident that something is wrong.’ At this time I was seated at the east side of the billiard table, and I noticed Burbank take another ball out of his pocket, and, concealing it in his hand, said: “Are there only fourteen balls there?’ and extended his hand and raked in the fourteen balls, counted all the balls together, and said: ‘There are fifteen balls there.’ ‘Yes,’ said Meuly, ‘there are fifteen now.

I have enough of this game.’ Douglas spoke up and said: ‘Burbank, get your money.’ Burbank replied: Yes, I want the money before you leave the houseJ Meuly said: ‘You will get your money,’and he picked up his coat and walked out behind the bar and washed his hands. Burbank, Douglas and myself followed Meuly, and Burbank asked Meuly if he would take something to drink. Meuly replied that he did not care for anything. They were in front of the bar. I was in rear of all, about the center of the room.

Meuly had his side to the bar, Douglas said to Burbank: •Get your money before Tie leaves the house,’ and Bur bank said: ‘Yes, he wanted it before he left the house .’ At the same time Burbank said something to the bar keeper in Spanish, and the bar keeper handed him a revolver. At the time Burbank received the pistol, Meuly looked' around and saw it. Meuly then said to me: ‘Will you please step up to my room and bring me my valise; I want to pay him the money I owe him.’ I replied ‘Certainly,’ and started after it.” Here the witness tells of his getting the valise and returning with it to the saloon.

He then proceeds: “I took the valise into the threshold of the door of the Commercial saloon. Meuly stepped from within into the doorway, took out a key and opened the valise. He first took out a paper which looked like a check, and with his right hand he took out a revolver, and left the valise open in front of me. Douglas was standing at the counter nearest the door, and Burbank beyond him.

Meuly, with the pistol hanging down by his side, in his right hand, went past Douglas and up to Burbank, and said: ‘Burbank, you demanded this money twice before I left the house; how do you want it?’ Douglas was leaning with his right arm on the counter. I think he must have seen the pistol. He said: You will see d—d quick,’ and ran his right hand into or on his hip pocket.

Meuly wheeled on him and threw his revolver down on him, and touched him on the lappel of his coat with his left hand and said: ‘My friend, this is something that does not concern you, and I wish you would throw up your hands.’ Douglas did not pay any attention, nor did he say anything, but kept pulling at something he had in his pocket. Meuly waited a moment and said: ‘Throw up your hands, or I will have to cut you down.’ Douglas made another jerk, and Meuly fired and shot him. Meuly wheeled on Burbank and saidr ‘Burbank, you have a gun on you;. I want it;’ and threw his pistol down on him.

Burbank said he was a deputy, and had a right to carry it. Meuly said: T don’t give a God d—n what you are; give up your gun.’ With this, Burbank made a movement to get ready to [shoot] him, and Meuly said: ‘Stand up there, or I will shoot the head off of you.’. Burbank then threw his hands up, and Meuly reached over and took Burbank’s pistol and said: ‘You get!’ and Burbank turned about half way towards me and got.” This is the testimony of the defendant’s main witness. It was in evidence that Douglas’s dead body was examined In a short time after the killing, and a pistol was found in his right hand hip pocket.

Burbank, the principal State’s witness, says that during Riverton’s absence (after Meuly’s valise) “Meuly walked up and down the room in front of the door. In a few moments I saw something handed into the door to Meuly.” III. Under our law a party has the right to defend himself against any assault or threatened assault made upon his person, calculated to inflict death or serious bodily injury. (Hunnicutt v. The State, 20 Texas Ct. App., 634) And it is not essential to his perfect right of self defense that the danger be real or in fact exist. It may be only apparent and not real.

If it reasonably appear from the circumstances of the case that danger existed, the person threatened with such apparent danger has the same right to defend against it, and to the same extent, that he would have were the danger real. (Willson’s Crim. Stats., sec. 978; Tillery v. The State, 24 Texas Ct. App., 251.) This perfect right of self defense, however, may be destroyed entirely or abridged by the acts of the party.

For, if a party by his own wrongful act brings about the necessity of taking the life of another to prevent being himself killed, he can not say that such killing was in his necessary self defense, but the killing will be imputed to malice express or implied by reason of the wrongful act which brought it about, or malice from which it was done. A person can not avail himself of a necessity which he has knowingly and wilfully brought upon himself. (Willson’s Crim. Stats., sec. 981; Allen v. The State, 24 Texas Ct.

App., 216.) But, whilst this is the rule as to a perfect right of self defense, such rule is limited by the intention of the party producing this necessity to take life. If his intention was not felonious, then the homicide which his necessity compelled will not be murder.

For, as is well said by the supreme court of Missouri in Partlow’s case: “Indeed, the assertion of the doctrine that one who begins a quai'rel or brings on a difficulty with the felonious purpose to kill the person assaulted, and accomplishing such purpose, is guilty of murder and can not avail himself of the doctrine of self defense, carries with it in its very bosom the inevitable corrollary that, if the quarrel be begun without a felonious purpose, the homicidal act will not be murder., To deny this obvious deduction is equivalent to the anomalous assertion that there can be a felony without a felonious intent; that the act done characterizes the intent and not the intent the act.” (State v.

Partlow, 4 S. W. Rep., 14; Reed v. The State, 11 Texas Ct. App., 510; Peter v. The State, 23 Texas Ct.

App., 684.) Row, if the party’s right of self defense, as to its extent— that is, whether perfect or imperfect—depends upon the intent with which he provoked the difficulty, and the intent is a fact to be found by the jury, then it seems clear that the charge of the court, in cases where the evidence creates any doubt as to the character of the intent, should always instruct the jury as to the distinction between the right of perfect and imperfect self defense as applicable to the particular act committed by the accused, and the extent of his liability when measured by it.

If, in the case in hand; Meuly did not provoke a difficulty with the purpose and intent to kill either Burbank or Douglas, but went to them, after getting his check and pistol from the valise, with the purpose and intent of settling the debt he owed Burbank, and an altercation ensued in'which they or either of them, by words accompanied by acts, or by acts alone, created a reasonable apprehension in his mind of death or serious bodily injury, and, acting under such reasonable apprehension and appearances of danger, he shot and killed Douglas, he believing the parties were acting together, or Douglas being the party making the demonstrations creating his apprehensions, then he would be justified on the ground of necessary self defense. (Bonnard v.

The State, 25 Texas Ct. App., 174). When there are more assailants than one, the slayer has the right to act upon the hostile demonstrations of either one of them, and to kill either of them if it reasonably appeared to him that they were present acting together to take his life or do him serious bodily injury. (McLaughlin v. The State, 10 Texas Ct. App., 340; Cartwright v. The State, 16 Texas Ct. App., 473; Jones v. The State, 20 Texas Ct. App., 665; Bean v. The State, 25 Texas Ct.

App., 347.) Of course, in determining Meuly’s intent, the jury will take into consideration the fact of Meuly’s arming himself with a pistol, and also the language which he used as. tending to provoke the difficulty. Was the language calculated to provoke a difficulty? Upon approaching them, if his act was to throw his pistol down upon them, accompanied by the demand, “throw up your hands,” there can be no question as to the provocation and his intention to produce a deadly conflict.

If, however, .having the check in one hand and the pistol hanging by his side in the other, his remark was, “you have twice demanded that I pay you your money before leaving the house, now how will you take it?” was that such language and conduct as would likely bring on a fatal rencontre? If not, then he is not liable as having provoked it,( The rule is that “the right of self defense is not impaired by mere preparation for the perpetration of a wrongful act, unheralded and unaccompanied by any ■demonstration, verbal or or otherwise, indicative of the wrongful purpose.” (Cartwright v. The State, 14 Texas Ct.

App., 486; Cunningham v. The State, 17 Texas Ct. App., 89; White v. The State, 23 Texas Ct. App., 155.) IV.

As to manslaughter: ’ If from the words of Burbank and Douglas, accompanied by Burbank’s conduct in getting and putting his pistol conveniently for use on his person, Meuly really believed that they did not intend that he should leave the house until he paid the money, and he was thus placed in restraint of his liberty, and, knowing that he could not pay the money, and believing they would decline the check and still refuse to let him go, he shot in order to effect his release from the illegal restraint thus imposed, the offense would be manslaughter, and not murder. “An illegal attempt to restrain a man’s liberty, even under color of legal process, is such provocation as to reduce the offense to manslaughter.

This holds where a man is injuriously restrained of his liberty, as where a creditor stood at the door of his debtor with a drawn sword to prevent him from escaping while he sent for a bailiff to arrest him.” (Whart. on Hom., sec. 447.) A citizen authorized to stand upon his individual rights may oppose force to force in the prevention of an attempted wrong, and when illegally restrained of his liberty may not only oppose force to force, but can increase that force even to the killing of his adversary, if necessary to prevent the attempted wrong. (Ross v. The State, 10 Texas Ct. App., 455; Willson’s Crim.

Stats., sec. 976.) Again, if Meuly, not intending to provoke a contest with intent to kill (Code Crim.

Proc., art. 603), but under the influence of terror, produced by the acts and conduct of Burbank and Douglas, procured his pistol as a means of defense in case they should attack or restrain him upon his failure to pay the money before he could leave the house, and their acts, words and conduct when he asked how they would have the money was such as to arouse either of the emotions known as anger, rage, sudden resentment or terror, rendering his mind incapable of cool reflection, and under the immediate influence of the sudden passion thus aroused he shot and killed Douglas, then his offense would be manslaughter, and not murder. (Penal Code, arts. 593, 594.) Where the evidence tends to show that passion was aroused by an adequate cause, the question whether the act of killing was caused by the passion is for the jury and not the court to pass upon. (Mackay v.

The State, 13 Texas Ct. App., 360; Willson’s Crim. Stats., sec. 1009.) In this case the court refused, though requested, to charge upon manslaughter. Opinion delivered October 27, 1888. Because the charge of the court did not sufficiently present the law applicable to the theories legitimately arising upon the evidence adduced in behalf of the defendant, the judgment is reversed and the cause remanded for another trial. Reversed and remanded.