Renow v. State
Decision Date | 10 March 1909 |
Parties | RENOW v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from District Court, Denton County; Clem B. Potter, Judge.
Lige Renow was convicted of homicide, and appeals. Affirmed.
Emory C. Smith and J. W. Sullivan, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.
This is the second appeal of this case. The opinion on the former appeal will be found in 49 Tex. Cr. R. 281, 92 S. W. 801, where the facts are stated in some detail. While there are some discrepancies and differences between the testimony as given on the former appeal and that produced on the trial from which this appeal results, they are not substantially different. On the trial of this case appellant was found guilty of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years. The court submitted to the jury murder in the second degree and manslaughter. The instructions given with reference to murder in the first degree were, as stated in the court's charge, given only for the purpose of enabling the jury better to understand the law in respect to murder in the second degree and manslaughter.
1. The most important question raised on this appeal is the action of the court in refusing to give in charge to the jury the substance of article 571 (now 676) of the Penal Code. This point was saved by proper bill of exceptions, and was asked in connection with the testimony of Shack Isom, who testified in substance that immediately before the fatal shot, which killed his brother, he had struck appellant with a stick about 2½ or 3 feet in length and about an inch in diameter, and that it was such an instrument as that he could have knocked a man down with it if he had hit him hard enough, and that it was a bludgeon with which he could kill a man. In this connection this witness and appellant had also testified in substance that Shack Isom and the deceased, Dolphus (his brother), had followed him some distance, and that immediately before the fatal shot deceased had the stick in his hand, when defendant turned or was turning around, and in connection with appellant's claim that he shot in self-defense and under the belief that his life was in danger. This article of our Penal Code is as follows: "When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapons or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury." The courts have construed this article, and discussed it not infrequently in connection with article 51 of our Penal Code, which is as follows: "The intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act." Closely allied to these statutes is article 717 of the Penal Code, which is as follows: "The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently appears."
It is undenied that the testimony for appellant in this case makes a strong showing on the issue of self-defense. It seems to be settled in the evidence that Shack Isom and Dolphus, his brother, followed appellant some considerable distance. It is admitted by Shack Isom that he struck appellant one blow on the neck or shoulder with the stick in question. He does not seem, however, to have been seriously hurt by it; nor was the blow in any sense a severe one. The stick in question is described by Shack Isom as being 2½ to 3 feet long and about an inch in diameter, and as being a stick that had been used about the cow pen to keep off the calves while milking. It could not, under the decisions of this state, be regarded as in law a deadly weapon. This is well settled in the decisions of this state. See Washington v. State, 53 Tex. Cr. R. 480, 110 S. W. 751. The bludgeon there used was described as "a small piece of dry stove wood about as large around as my wrist and about two feet long." This court had theretofore held that a black jack fence pole, although used as a rail, is not necessarily a deadly weapon. Wilson v. State, 15 Tex. App. 150. In the case of Connell v. State, 46 Tex. Cr. R. 259, 81 S. W. 746, Judge Henderson, speaking for the court, seems in terms to recognize that a stick is not to be classed as a deadly weapon. In that case he says: "If the weapon is not deadly, the intention to take life cannot be inferred, but must evidently appear." Referring to article 717 of the Penal Code, he says: "We know of no case where this article is required to be given in charge, unless the weapon used was not of a deadly character, such as a stick, a club, or a very small knife." Again, in the case of Burnett v. State, 46 Tex. Cr. R. 116, 79 S. W. 550, it is said: "Where the party used an instrument not likely to produce death by the manner and means of its use, but death does occur, this statute may become a part of the law, but as we understand it never applies unless the intent is an issue in the case." This language was used in connection with a death caused by the use of a bowie knife, which was recognized and treated as a deadly weapon.
The only cases which we have found where article 676 of the Penal Code (formerly 571) is required to be given are cases where the instrument used was of necessity and as a matter of law a deadly weapon. Such were the facts in the cases of Kendall v. State, 8 Tex. App. 569; Jones v. State, 17 Tex App. 602; Ward v. State, 30 Tex. App. 687 18 S. W. 793; Skaggs v. State, 31 Tex. Cr. R. 563, 21 S. W. 257; Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679; Orman v. State, 24 Tex. App. 503, 6 S. W. 544; Hall v. State, 43 Tex. Cr. R. 479, 66 S. W. 783; Pierce v. State, 21 Tex. App. 548, 1 S. W. 463. There was some discussion of the statute in Cochran v. State, 28 Tex. App. 422, 13 S. W. 651; but the point was not in fact made, and the quotation there made from Kendall's Case had no relation to the real question raised. In the Cochran Case the instrument of assault was a billiard cue, with the large end used in the hands of a stalwart man, greatly the superior in weight and strength to the person assaulted. In all the history of the decisions of this court, few appeals have raised this question, and in every case where it has been applied the instrument of assault has been per se a deadly weapon. In all those cases, except the case of Jones v. State, supra, the weapon was a pistol used as a firearm, but not as a bludgeon. Now, in this case it is evident, under all the decisions of this court, the stick in question was not as a matter of law a deadly weapon. There is nothing in the evidence touching the manner of its use which would justify the court in assuming that it was used, or intended to be used, as such. We do not think the testimony warranted the submission of the issue to the jury that, judged from appellant's standpoint, he might have acted under reasonable apprehension of death or serious bodily injury; but this was a question of fact in the case, and not a presumption of law.
The reasoning of the court in the case of Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361, seems to be in point, and the principle there announced to rest on a firm foundation. In that case Judge Hurt, speaking for the court, says: ...
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