Barkley v. State

• Decision Date: 19 May 1948
• Docket Number: No. 23944.,23944.
• Citation: 214 S.W.2d 287
• Parties: BARKLEY v. STATE.
• Court: Texas Court of Criminal Appeals

214 S.W.2d 287

BARKLEY v. STATE.

No. 23944.

Court of Criminal Appeals of Texas.

May 19, 1948.

Rehearing Denied November 3, 1948.

Commissioners' Decision.

Appeal from District Court, Childress County; Luther Gribble, Judge.

J. D. Barkley was convicted of murder, and he appeals.

Affirmed.

John Deaver, of Memphis, and C. C. McDonald, of Wichita Falls, for appellant.

Leonard King, Dist. Atty., of Childress, Ernest S. Goens, State's Atty., of Austin and Burks & McNeil and Burton S. Burks, all of Lubbock, for the State.

KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of fifteen years.

On original submission of this case, we reversed the judgment of conviction on what we considered a sufficient objection to the court's charge. The state, by and through its able attorneys, has filed a well prepared motion for a rehearing specifically directing our attention to the fact that appellant's objections to the charge of the court were mainly addressed to paragraph 18, whereas, in our original opinion, we gave the language of the objection a more comprehensive construction than may have been justified which requires a further discussion of the question. Therefore, we have decided to withdraw the original opinion and substitute this one therefor.

For a better understanding of the questions involved and the law applicable to the issues, we deem it only proper to here state the salient facts proven on the trial.

Appellant and deceased were employed by the Fort Worth and Denver Railroad Company in its shops located at the town of Childress. It appears from the record that some resentment had arisen in the mind of the deceased against appellant by reason of the fact that the deceased had been informed, or at least had conceived the idea, that appellant had made some report to Mr. Roach, the Superintendent of the Motive Power at the shop, concerning him, the deceased; that on the morning of the day in question he, the deceased, inquired of Mr. Kilgore, who was also employed by said Railroad Company, if that s____ of a b____ (meaning appellant) had been talking about him again. Mr. Kilgore assured him that appellant had said nothing concerning him. Appellant testified that the first difference which arose between himself and deceased occurred on Friday preceding the Wednesday on which the killing occurred; that on that occasion the deceased picked up a hammer and inquired of appellant what he had been telling Mr. Roach on him, to which he replied, not a thing, whereupon, deceased remarked, "You are a Goddamned liar. I am going to find out tomorrow and if you did, I'll bury this hammer in your Goddamned head." On Sunday preceding the day of the killing, appellant went to a drug store to purchase a newspaper and while there he saw the deceased walk around the corner of the drug store out of sight. Appellant then left, went to his automobile and started to drive away when the deceased came back from around the corner of the drug store and said, "Run you s____ of a b____, I will kill you yet." The next unpleasantness occurred between them on Monday morning at the railroad shop, at which time the deceased had a bolt with a nut on it in his hand and said to appellant, "Come here, you old s____ of a b____," but appellant declined to comply with the request, turned and walked away. On the morning of the fatal day, the deceased, while sitting on a bench where the workmen checked in, would look at appellant and thumb his nose with both hands at appellant; that on the afternoon of said day when appellant had entered his parked automobile with the purpose of going home, the deceased approached the car and said, "You s____ of a b____, I have got you now, you can't run this time. I am going to kill you if it is the last thing I ever do," then started to go around the car, at which time appellant took a pistol out of the glove compartment of the car, got out of his car, and commanded deceased to stop, whereupon the deceased remarked, "You s____ of a b____, I will make you eat that gun," and started to pull at his shirt and continued to advance toward appellant at which time he shot the deceased.

The deceased did not, in fact, have a weapon of any kind in his hand, nor about his person except a pocket knife which was in his pocket.

The court, in his charge, instructed the jury on the law of murder with and without malice, threats, and self-defense. In paragraph 18 of the charge, the court instructed the jury as follows: "You are further instructed that where a defendant accused of murder seeks to justify himself on the grounds of threats against his own life, he is permitted to introduce evidence of the threats made, but the same shall not be regarded as affording justification for the offense unless it be shown that at the time of the homicide the person killed by some act then done manifested an intention to execute the threats so made, if made."

This is a verbatim copy of art. 1258, P. C., and no valid objection could be urged thereto.

In paragraph 19, the court, in applying the law of threats, instructed the jury as follows: "Now, if you believe from the evidence that the deceased, Marvin Mayo, made threats to take the life of defendant, J. D. Barkley, or do serious injury to him, the said J. D. Barkley, or, if you have a reasonable doubt thereof and you further believe from the evidence that at the time of the killing the said Marvin Mayo by some act or acts then done, manifested an intention to execute the threats so made, if made, or if you have a reasonable doubt thereof, and cause the defendant to have a reasonable expectation or fear of death or serious bodily injury to himself at the hands of the said Marvin Mayo and that acting under such reasonable expectation or fear the defendant killed the deceased then you must acquit the defendant, or if you have a reasonable doubt thereof then you must resolve such doubt in favor of the defendant and acquit him."

This was an instruction on the law of threats separate and apart from the issue of self-defense.

In paragraph 20, the court, in applying the law of self-defense, instructed the jury as follows: "Upon the issue of self-defense you are instructed that every person has the right to defend himself against what appears to him, viewed from his standpoint at the time, to be an unlawful attack upon his person and a homicide committed under such circumstances is justifiable. A reasonable apprehension of death, or serious bodily injury will excuse a person 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. Each juror should place himself in the position of the defendant and determine from all of the facts and circumstances as you believe they appeared to him, the defendant, at the time he shot the deceased whether his apprehension or fear of death or serious bodily injury was reasonable."

Appellant's first objection to the court's charge is specifically levelled at paragraph 18 hereinabove set out. He made the following objection thereto: "that it was on the weight of the evidence; that it is too restrictive and deprived him of his right of self-defense based upon threats made to him in person by deceased, which threats reasonably appeared to the defendant to be about to be executed by the deceased at the time by acts then done and words then spoken," but the court limits defendant's right of self-defense alone to some act then done by the deceased and deprives him of the words then spoken, and he requests the court after the words "by some act then done" to add thereto "or words spoken." It is quite obvious that paragraph 18 is not subject to the objections addressed thereto since it is a verbatim copy of the statute. It may be that appellant had some other paragraph of the court's charge in mind and through mistake or inadvertence confined his objection to paragraph 18. However, under the law, we must dispose of the question as the same appears in the record. Art. 658, Vernon's Ann.C.C.P states that the objections to the court's charge shall be in writing, distinctly specifying each ground of objection. If he confines his objection to one certain paragraph and that paragraph is not subject to the objection, this court would not be authorized to apply the objection to other paragraphs to which no such objection was interposed.

Appellant's objection to paragraph 20, in substance, reads as follows: "Defendant specially excepts to paragraph 20 of the court's main charge and asks the court to strike the last five lines in said paragraph beginning with the words, `each juror' and ending with the words `was reasonable' for the reason that the same was on the weight of the evidence; that it is an instruction to the jury that it is their duty to look at the transaction from what they believe from the evidence was the standpoint of defendant at the time; that said charge leads the jury to believe that they should judge the transaction in the light of what the after developments showed instead of viewing it from defendant's...