Allen v. State

• Decision Date: 18 October 1911
• Citation: 141 S.W. 983
• Parties: ALLEN v. STATE.
• Court: Texas Court of Criminal Appeals

141 S.W. 983

ALLEN v. STATE.

Court of Criminal Appeals of Texas.

October 18, 1911.

On Motion for Rehearing, January 3, 1912.

Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.

Jim Allen was convicted of murder in the second degree, and he appeals. Affirmed. Rehearing denied.

A. S. Fisher, McGregor & Gaines, and Allen & Allen, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

In this case appellant was indicted by the grand jury, charged with murder, and, upon being tried, he was convicted of the offense of murder in the second degree.

1. Appellant filed an application for a continuance, which being overuled the action of the court was excepted to, and the first ground of the motion for a new trial is based on this bill. By the bill it is shown that the witness Lena Scott had been duly subpœnaed, and the defendant expected to prove by said witness that she, the witness, told appellant that "deceased had told her to tell appellant to come up to the railroad where he was at work, and he would pay appellant the dollar he had borrowed from appellant's wife, and that she had told appellant these facts." The court, in approving the bill, states: "That appellant and his wife had testified substantially to the facts recited as expected to be proved by this witness, which testimony was not contradicted by the state." This was the second application based on the absence of this witness, and as the testimony was merely cumulative of other testimony in the record, which was uncontradicted, the court did not err. Harvey v. State, 35 Tex. Cr. R. 545, 34 S. W. 623. If the testimony had been contested, inasmuch as it was only sworn to by defendant and his wife, there might be some ground for complaint, but, as it was an uncontested fact, no injury appears.

2. Appellant also complains that he was not permitted to prove his general reputation by the witnesses named for truth and veracity. He was permitted to prove his general reputation as a peaceable and law-abiding citizen. Inasmuch as there is no suggestion in the record that there was any effort made to impeach defendant by contradictory statements or otherwise, the court did not err. The fact that the state's witness and the defendant conflicted in their evidence furnishes no ground to support a witness by evidence of reputation for truth and veracity. Harris v. State, 45 S. W. 714; McGrath v. State, 35 Tex. Cr. R. 413, 34 S. W. 127, 941.

3. On the trial of this case the state's witness, Joe Weathersby, was sought to be impeached by showing that at the examining trial of defendant he had made statements contradictory of his evidence on this trial, and the appellant introduced a portion of said testimony for said purpose. The state was then permitted to support the witness by introducing the entire testimony of the witness taken at the examining trial. The court, in approving the bill, states: "I considered the testimony admissible for the following reasons: (1) The defendant having introduced a portion of the statement, the state was permitted to introduce the whole on the theory that, where one party introduces a portion of an instrument, the other party has the right to place the whole of the instrument in evidence. (2) The defendant having sought to impeach the witness by showing conflicting statements, the state was permitted to introduce the whole of the witness' statement made on the examining trial in order to support the testimony of the witness given on the trial of the cause in so far as it tended to do so. (3) The defendant having introduced an isolated portion of the witness' testimony given on the examining trial, I deemed the whole statement admissible in order that the jury might determine whether the isolated statement truly reflected the meaning of the witness; and in order that the jury might consider the statement in the light of all that was said by the witness on the examining trial." This presents no error. Bailey v. State, 9 Tex. App. 99; Goode v. State, 32 Tex. Cr. R. 508, 24 S. W. 102; Conway v. State, 33 Tex. Cr. R. 327, 26 S. W. 401; Easterwood v. State, 34 Tex. Cr. R. 401, 31 S. W. 294; Streight v. State, 138 S. W. 742.

4. We cannot consider that ground in the motion for a new trial, complaining of the rejection of testimony as to the reputation of the prosecuting witness; there being no bill of exceptions in the record reserved to this action of the court. In the absence of a bill of exceptions, we must conclude that such matters did not occur.

5. There was no error in the court refusing to give special charge No. 2 requested by appellant. To select the evidence of any witness and thus charge would be upon the weight to be given the testimony.

6. All the other assignments relate to the charge of the court, and complaint is made that error prejudicial to defendant was committed because the court submitted the issue of manslaughter, as well as murder in the first and second degrees. At most, all this could have resulted in was to authorize the jury to find the appellant guilty of a less offense than they did find, and assess a less penalty, and this would not be injurious to appellant. There is nothing in this portion of the charge that could or would be instrumental in causing the jury to convict defendant of murder in the second degree, it presents clearly the law applicable to manslaughter under the facts in this case, and did not mislead the jury on the issue of self-defense, for in said charge on manslaughter the court instructs the jury in regard to the assault testified to by defendant: "However, if such assault and battery, if any, be sufficient to constitute self-defense, under the instructions hereinbefore given, then in such case the defendant would be entitled to an acquittal." Without expressing an opinion as to whether the evidence raises the issue of manslaughter, we hold that in submitting the issue in the manner it was submitted could not have been prejudicial to appellant.

7. The other paragraphs of appellant's motion complain of the charge of the court in presenting the law of self-defense. In defining the law applicable to murder in the first and second degrees, the court also defined self-defense, and informed the jury: "Every person is permitted by law to defend himself against any unlawful attack, reasonably threatening or appearing to threaten injury to his person, and is justified in using all the necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. Homicide is justified by law when committed in defense of one's person against any unlawful and violent attack, made in such a manner as to produce a reasonable expectation or fear of death or some serious bodily injury." Later in the charge, when applying the law of self-defense as applicable to the facts in this case, the court instructed the jury: "A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. If from the evidence you believe the defendant killed the said John Spencer, but further believe that at the time of so doing the deceased had made or was making an attack on him, which, from the manner and character of it and the relative strength of the parties, caused him, when viewed from the defendant's standpoint, to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, or if you have a reasonable doubt as to whether or not such are the facts, then you should acquit him; and if the deceased was armed at the time he was killed and was making such attack on defendant, and if the weapon used by him and the manner of its use was such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant."

The objections to the first paragraph, defining self-defense, are all covered when the court applied the law to this case in the later clauses. The jury was informed that he had a right to act "upon a reasonable apprehension of danger as it appeared to him from his viewpoint." The criticism of these paragraphs that the appellant had the right to act from "apparent danger" as well as "real danger" do not show any injury to appellant. If, as appellant contends, the testimony of defendant presents actual danger alone, the fact that the court presented the law more favorably to appellant than the facts justified would not be injurious to him, and he could not complain. But in reading the last paragraph of the law of self-defense, as applied by the court to this case, it will be seen the charge is not subject to this criticism.

Appellant proved that he had heretofore borne a good reputation as a peaceable law-abiding citizen, and the jury found with his contention that the killing was not premeditated, and in going to the place where deceased was at work he was not actuated by express malice, but was on a lawful mission. However, they found against his theory that he was in danger of losing his life or suffering some serious bodily injury, and found that he was not justified in killing deceased, but that he did so without justification, and without adequate cause to reduce the homicide to manslaughter. There was no error committed by the court in the trial of the case as presented by the bills of exception, and the court fairly submitted all the issues in his charge.

The judgment is affirmed.

DAVIDSON, P. J., absent....