Alley v. State, (No. 6811.)

• Decision Date: 31 May 1922
• Docket Number: (No. 6811.)
• Citation: 241 S.W. 1024
• Parties: ALLEY v. STATE.
• Court: Texas Court of Criminal Appeals

241 S.W. 1024

ALLEY v. STATE.

(No. 6811.)

Court of Criminal Appeals of Texas.

May 31, 1922.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Earl Alley was convicted of murder, and appeals. Affirmed.

Stone, Miller & Guleke, of Amarillo, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Appeal is from a conviction for murder, with punishment assessed at 15 years in the penitentiary.

At the time of the homicide a carnival, or rodeo, was in progress in Potter county. Appellant and his brother attended on the night of the trouble. The record would indicate that appellant had been using an intoxicant of some character, and was somewhat under its influence. Some time in the early part of the night Messrs. Childers and Ivy, with their wives, were at the rodeo grounds, and were run into by appellant. The state's evidence shows that Childers took appellant by the shoulders and pushed him out of the way, whereupon appellant cursed him in the presence of the ladies, using a very vile epithet, and was promptly knocked down by Childers, whereupon appellant's brother, appearing to desire to take some part in the matter, was knocked down by Ivy. About the time appellant and his brother got up from the ground an officer appeared on the scene. Appellant was causing some disturbance, but told the officer he would "pass the matter up so far as he was concerned," and went away. Deceased, Burns, had nothing to do with the trouble, and so far as the record discloses was not even present when it occurred. A few minutes later appellant met a friend of his, and was telling him that he and his brother had been assaulted, and his friend was heard to remark "Let's go get the s___ b___, they don't make them too big for us." A few minutes thereafter appellant, referring to deceased, said, "There is the s___ b___ now that hit me," and immediately stabbed deceased, from which he instantly died. The state's evidence indicates that deceased was struck over the shoulder from the rear, and did not even know of appellant's presence. Appellant's testimony, on the other hand, would indicate that he and his brother were entirely without fault; that some one run against them and knocked them down. Appellant disclaims any knowledge of who it was, but says, fearing he would be further assaulted, he took out his knife and opened it, and was carrying it with the blade up his sleeve; that upon approaching deceased, deceased said, "Here comes this fighting s___ b___ now," and struck appellant, causing him physical and mental pain, and that he stabbed deceased for this reason, and because he feared deceased would injure him or his brother. As is usually the case, the evidence was conflicting as to the circumstances immediately attending the homicide, but as we view the record all the issues raised by the testimony were properly submitted by the court in his charge, and the jury has settled them adversely to appellant.

Complaint is made because the court declined to give the following special charge requested by appellant:

"You are instructed that the knife offered in evidence is not as a matter of law a deadly weapon."

We have been unable to discover the necessity for such a charge. Nowhere in the instructions is the term "deadly weapon" used. There is no evidence raising the issue that appellant did not intend to kill deceased when he struck him, which would call for a charge under articles 1147 or 1149, Pen. Code. No instruction of any kind was given or requested as to presumptions arising from the use of the knife. The positive testimony given by the physician, who measured the knife blade while on the witness stand, was that the blade itself was 3¾ inches long, and, measuring to the hilt, it would be 5 inches; that death could be inflicted with it. The evidence further shows that the stab severed the aorta, resulting in instant death.

The court charged the jury:

"If you find and believe from the evidence beyond a reasonable doubt that defendant acting under the immediate influence of sudden passion arising from adequate cause, etc., killed deceased, you will find defendant guilty of manslaughter."

Appellant complains that the charge as framed shifts the burden of proof on the issue of manslaughter from the state to appellant. We realize the difficulty of framing a charge where the issues of murder, manslaughter, and self-defense arise. The burden is upon the state to show that defendant is guilty of any grade of homicide. On the other hand, if the elements are present which reduce the offense to manslaughter, to that extent it is as much a defense to the charge of murder, as self-defense would be a complete justification. The charge given by the court is very similar to that discussed in Moore v. State, 88 Tex. Cr. R. 624, 228 S. W. 218. As was there suggested, the usual manner pursued to protect accused in his legal rights is by a qualified instruction to the effect that if the jury believes beyond a reasonable doubt that accused is guilty of some grade of homicide, but has a reasonable doubt as to whether it is murder or manslaughter, then the benefit of the doubt must be given to accused, and he can only be found guilty under such circumstances of the lower grade. This instruction was given in the instant case immediately following the charge on manslaughter. In addition thereto we find a special charge requested by appellant and given by the court, the latter part of which is as follows:

"You are instructed that before you can find defendant guilty of murder you must find from...