John Laws v. The State, 26 Tex. Ct. App. 643

Willson, Judge.

Homicide is permitted by law when inflicted for the purpose of preventing theft at night, and the homicide in such case is justifiable at any time while the offender is at the place where the theft is committed, or within reach of gun shot from such place. (Penal Code, art. 570.) In this case no question is made as to the commission of the homicide by the defendant, but defendant claims that, at the time he shot and killed the deceased, the latter had committed theft of whisky belonging to the former, and was within gunshot of the place where the theft was committed, and that it was night time when the theft and homicide were committed, and that he committed the homicide for the purpose of preventing the consequences of the theft.

There is evidence tending to support this defense. In instructing the jury with reference to such defense the court omitted to define night time. This omission in the charge was not excepted to, but was insisted upon as error in defendant’s motion for a new trial. There is a conflict in the evidence as to the exact time when the homicide occurred. Some of the witnesses fix the time at later than thirty minutes after sun set, and some at about sun set.

This being the state of the evidence, it was very important to the defendant, we think, that the jury should understand the legal meaning of the word “ night,” as used in the statute referred to. This statute does not furnish a definition of the word, and we must therefore resort to other authorities for its meaning. At common law day time means those portions of the morning and evening wherein, though the sun is below the horizon, sufficient of his light is above for the features of a man to be reasonably discerned. If there is not sufficient light for this purpose, it is night.

Light from the moon is not to be taken into account. There is no middle space between day and night; but, where ■one begins, the other ends. But the difficulties of applying this common law rule are so considerable that it has been changed by statute in England, and in most of the American-States, and these statutes prescribe exactly the time which separates the ■day from the night. (Bish. Stat. Crimes, sec. 276.) Opinion delivered December 19, 1888.

In this State, with reference to the crime of burglary, it is provided: “By the term ‘day time’ is meant any time of the twenty-four hours from thirty minutes before sun rise until thirty minutes after sun set.” (Penal Code, art. 710.) Again, it is provided that “words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning.” (Penal Code, art. 10.) It is clear to our minds, in view of the provisions cited, that a “theft by night” is a theft committed at any time between thirty minutes after sun set and thirty minutes before- sun rise, and the court ■should have so instructed the jury; and, having failed to do so, committed a material error calculated to injure the defendant’s rights.

Relating to the defense before mentioned, the court among other instructions gave to the jury the following in substance: “If you find that the defendant killed the deceased in the execution of a previously formed intent or plan to take his life, and not to prevent theft then being committed, or to prevent the consequences of the same, such killing would not be justified though ■done in the night time and whilst deceased was committing or had committed a theft.” This instruction was not excepted to, but was urged by defendant as error in his motion for a new trial, and is insisted upon here as error.

We are of the opinion that the instruction is not erroneous. If the killing was upon malice, and not to prevent a theft or the consequences of a theft, it would not be justified under the statute, although a theft by night was actually being committed by the deceased at the time he was killed. It is not the intention of the statute to justify murder. Such a construction of the statute would to our minds be unreasonable and exceedingly dangerous. Other questions presented on this appeal are not discussed and determined, because they are not likely to arise on another trial.

Because the charge of the court is materially defective in not instructing the jury in the legal meaning of day time •and night time, the judgment is reversed and the cause is remanded. Reversed and remanded.