Clark v. State

• Decision Date: 26 May 1909
• Parties: CLARK v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W. 179

CLARK v. STATE.

Court of Criminal Appeals of Texas.

May 26, 1909.

Appeal from District Court, Parker County; J. W. Patterson, Judge.

Stokes Clark was convicted of murder, and he appeals. Reversed and remanded.

B. D. Shropshire and Hood & Shadle, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Parker county, charged with the murder of Homer White. He was, on, to wit, November 18, 1908, convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of seven years. That he shot White and killed him in Weatherford, about the 4th day of February, 1908, is not denied. He rests his defense on the ground of self-defense, and the case involves some question of his right to resist an unlawful arrest and an arrest undertaken by means and force not reasonably necessary for that purpose. There were many issues in the case and it was in many of its aspects a case of difficulty, and many complex issues involved in it; but in respect to the charge of the court except in matters hereafter referred to, it is not, as we believe, subject to serious criticism.

1. Among the errors relied on for a reversal is the alleged error in the charge of the court, in the sixteenth paragraph of same, where, among other things, the jury are instructed as follows: "If you believe from the evidence, beyond a reasonable doubt, that the defendant, with a deadly weapon, or instrument reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion, without adequate cause, and not in defense of himself against an unlawful attack, reasonably producing a rational fear or expectation of death or serious bodily injury, with the intent to kill, did with a pistol, within the county of Parker and state of Texas, on or about the 4th day of February, 1908, shoot and thereby kill Homer White, as charged in the indictment, you will find him guilty of murder in the second degree, and so say in your verdict, and assess his punishment at confinement in the state penitentiary for any period that the jury may determine and state in their verdict, provided that it be for not less than five years." This charge has been held to be not error in the case of Waters v. State (Tex. Cr. App.) 114 S. W. 628, and in many cases decided since then. The same question is also raised in respect to the charge of the court on manslaughter in the twenty-third paragraph of same. There was, as we believe, no error in the court's instruction on this subject.

2. The court erred in not giving in charge to the jury the substance of article 676 of our Penal Code of 1895. This article 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." In this case the weapon used by White was a pistol used as a firearm. In respect to the use of a deadly weapon it has been the uniform holding of this court, since the case of Kendall v. State, 8 Tex. App. 569, that the court must give in charge to the jury the substance of this article of our Penal Code. We have recently discussed this matter at great length in the case of Renow v. State (not yet officially reported) 120 S. W. 174. See, also, Jones v. State, 17 Tex. App. 602; King v. State, 13 Tex. App. 277; Cochran v. State, 28 Tex. App. 422, 13 S. W. 651; Word v. State, 30 Tex. App. 687, 18 S. W. 793; and Yardley v. State, 50 Tex. Cr. R. 644, 100 S. W. 399, 123 Am. St. Rep. 869.

3. Complaint is also made that the court failed to instruct the jury in connection with appellant's right of self-defense that he had the right to shoot the deceased, Homer White, as long as it reasonably appeared to him, looking at the situation from his standpoint, that his life was in danger, or that he was in danger of serious bodily injury at the hands of White. The evidence in brief showed that quite a number of shots were fired—indeed, that appellant and deceased emptied their six-shooters at each other, and that they continued to shoot as long as they could. We think, in view of the facts, that it was important that a charge to this effect should have been given.

4. Complaint is made that the charge of the court on self-defense in other respects is insufficient and does not properly present this issue. To this we cannot agree. The charge of the court, as we believe, is an admirable presentation of the law, except in respects above indicated, upon this issue. Among other things the court instructed the jury as follows: "Homicide is permitted and justified by law, when committed for the purpose of protecting one against an unlawful attack producing a reasonable fear or expectation of death or serious bodily injury. If you find that the defendant did shoot and kill the said Homer White with a pistol, and if you believe that at the time he so shot and killed the said White that said White had made, or was making, or was in the act of making, an unlawful attack upon the defendant of such a character as to put the defendant in danger of death or serious bodily injury, or of such character as to cause it reasonably to appear to the defendant, viewed from his standpoint, that he was in danger of death or serious bodily harm, and that he killed the said Homer White to protect himself against such attack, you will find the defendant not guilty. A person has the right to defend himself against the reasonable appearance of danger, as he has against actual danger; and in determining whether or not it reasonably appeared to the defendant that he was in such danger you will view the case from the standpoint of the defendant, and view the facts and circumstances of the case as they then reasonably appeared to him. A party attacked is never bound to retreat, but may stand his ground and make his defense."

5. Again, complaint is made that the court erred in refusing to admit in evidence what is claimed to be a res gestæ statement of appellant, which he offered to prove by the witness Easley. The facts touching this matter, as evidenced by the bill of exceptions appearing in the record, are to this effect: Easley testified that at the time of the killing of Homer White he (witness) ran the Arlington Hotel in Weatherford, and that he heard the shooting; that shortly after the shooting appellant and a woman named Ledford came to his hotel; that it had not been over five minutes from the time the last shot was fired until they reached his hotel; that in his opinion it was not over 40 yards from said hotel to the place of the shooting; that, when appellant and this woman came into the hotel, he was weak, wounded, and bleeding, and leaning on the Ledford woman, and the left pocket of his overcoat was on fire; that as soon as they came in appellant stated to a policeman named Henry that if he would protect him he would give him (the policeman) his pistol; and that Henry assured him that he would be protected, and appellant then gave up his pistol. Thereupon, in this connection, appellant proposed to prove, and could have proven, by the witness Easley that, at the time and place when appellant surrendered his pistol to said Henry, appellant said to him that he had killed White in self-defense. This statement was offered as a part of the res gestæ, in connection with the proof above recited, and with reference to all the facts in evidence, and particularly the short time intervening between the shooting and the declaration, with the further proof that appellant was at the time growing weak from the loss of blood and seemed to be suffering great pain. This testimony was objected to on the ground that it was self-serving, and made at the time and place when the appellant would be forming his defense, and, further, that it expressed a conclusion on the part of the witness which involved both the law and the facts, and such as could not be testified to by him while he was a witness on the stand. The court, in his explanation allowing the bill, states that all the declarations made by appellant at the time described were admitted, except that portion wherein appellant said in the presence of Easley that he had shot the man, Homer White, in self-defense. Whether in any case a statement is res gestæ must depend to a large extent upon the facts and circumstances surrounding the parties at the time. In view of the fact that the shooting occurred within 40 yards of where the statement was made, that appellant came almost directly from the scene of the firing to the hotel, his condition, his loss of blood, his excitement, and all the circumstances, it seems to us, would well have justified the court in admitting this testimony on the ground that it was a part of the res gestæ; and such we believe it to be. As we gather from the bill, the learned trial court seems to have rested his action in excluding the particular portion of the testimony ruled out upon the ground that it was a conclusion, and not a statement of the facts. That the declaration was somewhat in the form of a conclusion is undeniable. As to whether in any case one has acted in self-defense, or kills another in self-defense, may be a mixed question of law and fact, and yet it...