Thomas Bonner v. The State, 29 Tex. Ct. App. 223

WHITE, Presiding Judge. This appeal is from a judgment of con- . viction for murder of the second degree, the punishment being assessed at five years in the penitentiary. 1. Defendant made a motion in arrest of judgment upon the ground that he had not been served with a copy of the indictment upon which he had been tried, and because the said indictment was the second indictment preferred against him in this case, and was invalid because not substituted as provided by

article 434 of the Code of Criminal Procedure, which prescribes the rule where a previous indictment has been lost or mislaid. Beyond the recitals in the motions in arrest and for new trial, we find no evidence in the record establishing the fact that the indictment was a second one found against appellant, and that the first had been lost or mislaid. If it was a second indictment this could avail the defendant nothing, because the pendency of one indictment is no bar to another, even for the same offense, though the accused can only be tried upon one. Hardin v. The State, 4 Texas Ct. App., 355; Cock v.

The State, 8 Texas Ct. App., 659; Schindler v. The State, 15 Texas Ct. App., 394; Williams v. The State, 30 Texas Ct. App., 357. After verdict it is too late to object for the first time that no copy of the indictment was served on the defendant. Roberts v. The State, 5 Texas Ct. App., 141; Richardson v. The State, 7 Texas Ct. App., 486. No material error is shown in the court overruling the motion in arrest of judgment. 3. Numerous objections are urged to the charge of the court, both for errors of omission and commission.

Its sufficiency is attacked by defendant’s first bill of exceptions because it omitted to submit as part of the law of the case the issue of manslaughter, which issue, it is insisted, is clearly raised by the evidence.

It is insisted by the Assistant Attorney-General in his brief that manslaughter is not in the case, because the defendant, in testifying as a witness, testified that he killed deceased in self-' defense against apparent, if not real, danger—the deceased at the time he was killed being in the act of advancing upon him in a threatening manner, with a drawn knife in his hand—and that he shot deceased because he believed that if deceased had got to him he would have killed him, as he had threatened to do.

Independently of defendant’s statement that he killed the deceased in self-defense, we think the evidence fairly raises the issue of manslaughter. Defendant and Nelson, his relative and friend, had previously been attacked by the deceased, who was a much more powerful man than either of them. Deceased had run both of them on the Sunday previous, and had chased them to their own home and to the inside of their own yard, and was only prevented from pursuing them into their own house by some female relatives of theirs.

When the women asked him to go away he said “If you don’t keep that black bastard son-of-a-bitch penned up he is my meat.” He lurked around in a back alley to their premises, seeking an opportunity to get at them. A few nights before the killing he saw defendant on his way home, and again chased defendant through an alley. On the day of the homicide he was again chasing Nelson from the base ball ground, and had run him almost to the yard gate of his home when defendant met them.

Nelson, got in the gate, and Sparks, the deceased, seeing defendant, said to him, “You black son-of-a-bitch, you will do just as well,” and immediately rushed upon him. Defendant drew his pistol and retreated to the middle of the street, telling him repeatedly to “ stand back.” Sparks still advanced, grabbing at his pistol,, when defendant finally fired the fatal shot. Most of the witnesses testified that deceased was a violent, dangerous man; that defendant was. much inferior to him in strength, and was of a quiet, peaceable disposition, and was a consumptive.

Some of the witnesses say Bonner seemed frightened when he was backing from Sparks. Bonner himself testified:'. “I told him to stop; he did not do it, and I fired. I did not take any aim. particularly—I was so badly frightened when I shot.

I wanted to stop-him, and when I saw that I had stopped him I did not shoot any more.” By the expression “adequate cause,” as used in the definition of manslaughter in our Code (Penal Code, art. 593), “is meant such as would, commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection.” Penal Code, art. 595.

It was, we think, a pertinent question to be determined by the jury-f rom all the circumstances attendant upon the killing, whether the causes-we have detailed were such as would commonly produce such a degree of. anger, rage, resentment, or terror as to render the defendant’s mind incapable of cool reflection. “Any condition or circumstance which is capable of creating sudden passion sufficient to render the mind of a person of ordinary temper incapable of cool reflection may constitute ‘adequate-cause,’ .and where the evidence shows a number of conditions or circumstances, tending either singly or collectively to constitute what a jury-might consider adequate cause, the charge should leave the jury at liberty to consider them all in determining whether or not adequate cause existed.

Orman v. The State, 24 Texas Ct. App., 495; Hawthorne v. The State, 28 Texas Ct. App., 212; Cochran v. The State, 28 Texas Ct. App., 422; Willson’s Crim. Stats., sec. 1018. The fact that the defendant, when testifying as a witness, claimed that, he killed deceased in self-defense alone would not deprive him of the right, to have all the other legitimate issues in the case submitted to the jury. In so far as the law of the case is concerned, his testimony is treated simply-as that of any other witness in the case.

The charge, to he sufficient,. must submit all the legitimate issues fairly arising from all the evidence, in the case. Apropos to the facts in this case, we quote the following from Rutherford’s case, 15 Texas Court of Appeals, 236: “Here the defendant, had been grossly insulted and abused by the language of the deceased, and these insults and abuse were being continued, and deceased was in the act-apparently of preparing to make (making in this case) a deadly assault-upon defendant with a knife; and besides this, the deceased was a notoriously desperate man.

Such being the facts, we think it very natural that a person of ordinary temper would be aroused to a degree of sudden passion sufficient to render his mind incapable of cool reflection. It. would require, we think, a man of extraordinary coolness and bravery to remain free from sudden and violent passion, and to refrain from prompt and violent action under such circumstances.

While such a state of facts may not constitute justifiable homicide, still we think they would well warrant a jury in finding that they did not constitute murder, and therefore the issue of manslaughter should have been submitted in the charge." See also 35 Mich., 16. Several objections are urged to the charge of the court upon self-defense. There was no instruction that in judging of the defendant’s acts in connection with his real or apprehended danger the jury should judge of them from his, defendant’s, standpoint, and as they appeared to him at the time.

Such an instruction was called for by the facts and circumstances developed in evidence. Bell v. The State, 20 Texas, 445; Cochran v. The State, 28 Texas Ct. App., 422, and authorities cited; Gonzales v. The State, 28 Texas Ct. App., 130. We are of opinion that the charge of the court upon this branch of the case is obnoxious to the further objection that it presents defendant’s right of self-defense in a negative instead of affirmative manner.

It is also defective in that, whilst it presents the law upon the theory of defendant’s provoking the difficulty, it does not present the converse theory, nor plainly the theory of an accidental and unintentional meeting. Defendant had just emerged from his house when he came upon the deceased in hot pursuit of Nelson. It is not shown that he had seen the parties before he left the house, or that he went out for the purpose of engaging in or provoking a difficulty with deceased. For aught that appears he may have been entirely innocent of any such intention, and the meeting a purely accidental one.

If it was accidental, and the deceased attacked him without his having done anything to provoke such attack, his right of self-defense would be perfect; and if deceased so attacked him as to create in his mind a reasonable apprehension of death or serious bodily harm he would be fully justified in taking his life. Bonnard v. The State, 25 Texas Ct. App., 173; Meuly v. The State, 26 Texas Ct. App., 274; Varnell v. The State, 26 Texas Ct. App., 56.

Again, “a person acting on behalf of another, to prevent such other from sustaining serious bodily injury, is entitled to the same justification under the law as would be the person in whose behalf he acts.” Will-son’s Crim. Stats., sec. 980. If, then, the deceased was pursuing Nelson with a knife with intent to inflict serious bodily injury or death upon Nelson, and in order to protect Nelson from such injury the defendant shot- and killed the deceased, he would in such event be justifiable to the same extent that Nelson would have been had he fired the fatal shot.

This phase of the law was not clearly and sufficiently presented by the charge. In response to a request from the jury for additional instructions upon the law relative to previous threats by deceased towards the defendant, the court submitted additional instructions which are also complained of. We are of opinion that these instructions are objectionable in that they also present the law negatively and not affirmatively for the defense. Irvine v. The State, 20 Texas Ct. App., 12. The original charge substantially instructed the jury negatively on the law of threats as contained, in

article 608 of the Penal Code. The jury requested further instructions as to threats made by deceased several days before the homicide, and asked, “Are they entitled to any consideration in rendering a verdict?” In response the court told the jury, in effect, that if deceased commenced the difficulty, and was at the time of the killing “ then doing some act or making some demonstration to justify the belief that he was then immediately about to carry such threats into execution,” the defendant would be justified “if need be” in killing his assailant.

The words “justify the belief” are more restrictive than the statutory words “ manifested an intention to execute the threat.” If a man’s acts “justify the belief” that he is about to take life or do serious bodily harm, the party thus assailed would have the right to kill in self-defense whether the assailant had made any threats or not against him. It is only required by the statute that the assailant should manifest an intention to execute his threats in order to afford a justification for taking his life.

It seems to us also that the words “if need be,” as used by the learned judge, unnecessarily qualify defendant’s rights under the statute. In the second paragraph of the instructions the learned judge reiterates-the law as to defendant provoking the difficulty, and tells the jury that if he did so he can not justify on the ground of threats.

This instruction was not responsive to the question of the jury, was unnecessary, and was objectionable in that it was calculated to place too prominently before the jury this feature of the case. “ It is undoubtedly improper for a court to place by frequent repetitions too prominently before a jury any principle of law involved in the case. Traylor v. Townsend, 61 Texas, 144; Powell v. Messer, 18 Texas, 401.

And especially is such a rule important in a criminal case, in order to guard against creating an impression upon the minds of the jury as to what may be the opinion of the court with regard to the facts to which the principle is applicable.” Irvine v. The State, 20 Texas Ct. App., 12. Other matters are complained of and assigned for error which we will not discuss, inasmuch as they are not likely to arise upon another trial.; For the errors we have pointed out, the judgment is reversed and the cause remanded. Reversed and remanded. Hurt, J., absent.