Blackmon v. State

• Decision Date: 14 February 1923
• Docket Number: (No. 6795.)
• Citation: 252 S.W. 803
• Parties: BLACKMON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 803

252 S.W. 803

BLACKMON v. STATE.

(No. 6795.)

Court of Criminal Appeals of Texas.

February 14, 1923.

Rehearing Denied June 27, 1923.

Appeal from District Court, Wood County; J. R. Warren, Judge.

Claude Blackmon was convicted of manslaughter, and he appeals. Affirmed.

R. E. Bozeman and Ben F. Cathey, both of Quitman, and Jones & Jones, of Mineola, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

MORROW, P. J.

Under an indictment for murder appellant was convicted of manslaughter; punishment fixed at confinement in the penitentiary for a period of two years.

The appellant shot and killed Bethel Blackmon, his uncle. The homicide took place at the home of the deceased, where appellant also lived. Appellant was working for the deceased under an agreement by which the appellant was to receive the proceeds from a certain number of acres of cotton. A short time before the homicide the appellant and deceased, according to some of the testimony, passed some harsh words concerning a settlement. The appellant, according to some of the testimony, called for a memorandum book in which the cotton weights were kept. The deceased did not produce the book at the time, but said that he would do so later. Appellant went into a room occupied by him, in which there were also the witness Clark and Bennett Blackmon, a brother of the appellant. The deceased afterwards came to the door of the appellant's room, and appellant fired two shots through the door, and, according to some of the testimony, pursued the deceased out of the door and fired at him again.

Appellant presented the theory of self-defense, claiming that from certain movements of the deceased which he heard he believed that the deceased had gotten a pistol out of a trunk situated in his room, and that he came to appellant's door with hostile intentions. It is the state's theory that the deceased went to the door to furnish the appellant with the book which he had previously called for, and to further discuss the settlement.

A great number of bills of exceptions are found in the record:

In bill No. 1 it is made to appear that the appellant had written certain letters to Bennett Blackmon; that the sheriff of Potter county arrested Bennett Blackmon, and took the letters from his possession while he was under arrest without the consent of the appellant and without any legal process. Appellant requested the court in a motion to require the state to permit him to inspect the letters, stating that they were necessary in the preparation of his case. Under certain circumstances the state's counsel may be required to furnish the appellant any written memorandum in his possession. See Green v. State, 53 Tex. Cr. R. 491, 110 S. W. 920, and cases cited. See, also, the same case reported in 22 L. R. A. (N. S.) 706; also Jones v. State, 85 Tex. Cr. R. 547, 214 S. W. 322. In the instant case, however, the bill does not reveal the purport of the letter in question, which seems to have been written by the appellant; nor does it show that the state made any use of it in the trial of its case, nor is the letter or its substance set out in the bill of exceptions referred to so that this court may determine the merits of the motion. In the absence of information upon the subject being revealed by the bill of exceptions, this court must assume that the ruling of the trial court was not harmful. Brown v. State, 83 Tex. Cr. R. 451, 203 S. W. 898; Manning v. State, 51 Tex. Cr. R. 214, 98 S. W. 251; Williams v. State, 53 Tex. Cr. R. 3, 108 S. W. 371; Tillman v. State, 88 Tex. Cr. R. 10, 225 S. W. 165.

A number of exceptions are found to the charge on self-defense. In bill No. 2 the complaint is that the charge failed to instruct the jury to view the matter from appellant's standpoint. The court, in its charge on self-defense, used this language:

"* * * And in determining whether or not there was reason to believe that danger did exist, the appearances must be viewed from the standpoint of the defendant at the time of the homicide, and from no other standpoint."

In bill No. 3 the complaint is made that the seventh paragraph of the charge does not specifically apply the law of self-defense to the facts of the case, but merely contains abstract propositions of law. The seventh paragraph of the charge covers about two pages of the record. So far as we are able to discern, the court in an admirable manner, instructed on the law of self-defense as applicable to the evidence. The exception to it is too general to merit consideration. The statute requires that objections to the charge shall "distinctly specify each ground for objection." Article 735, Code of Criminal Procedure.

The complaint in bill No. 4 is that the charge does not specifically tell the jury that it was not necessary that "deceased be actually armed." There was no special charge requesting this, and the main charge fairly and adequately covered the law of apparent danger, and that in deciding the question the matter must be viewed from the standpoint of the appellant. We think the charge is not subject to the objection presented.

Bill No. 5 complains that the seventh paragraph of the charge requires that the jury should find that the deceased had, prior to the time he approached the door to defendant's room, done some act or spoken some word or words in either the dining room or room of the deceased manifesting an intention upon the part of the deceased to inflict violence upon the defendant. We do not understand the charge to be subject to such interpretation. From it we take the following quotation:

"Now, if you shall find from the evidence that the defendant, Claude Blackmon, about the time alleged in the indictment, shot and thereby killed the deceased, then, if you shall further find that at the time he did so the deceased, by words or conduct, or both by words and conduct, or acts upon his part, created in the mind of the defendant a reasonable apprehension or fear of death or serious bodily injury at the hands of the deceased, viewing the facts and circumstances from the defendant's standpoint at the time, and, so believing, he shot and killed the deceased, or if you have a reasonable doubt thereof, you will find defendant not guilty. Or if you shall find that shortly prior to the difficulty in question the defendant and deceased had words, altercation, either in the dining room or the room of deceased, or both, and that the deceased cursed, and threatened the defendant with violence, and that the defendant retired to his room, and that shortly thereafter the deceased came out of his room and into the hall, and approached the room of the defendant, and that defendant called to him not to come in said room, and that thereupon the deceased opened or attempted to open the door of the defendant's room, or by words, acts, or conduct upon his part it reasonably appeared to the defendant, viewed from his standpoint, that the deceased was about to enter said room for the purpose of killing the defendant or doing him serious bodily injury, or if because of any act or conduct upon the part of deceased it reasonably appeared to defendant, viewed from his standpoint at the time, that deceased was about to attack him for the purpose of killing him or doing him serious bodily injury, and so believing he shot and thereby killed the deceased, he would not be guilty, and if you so find or have reasonable doubt thereof you will find him not guilty."

The sixth bill complains of the failure of the court to refer in the charge to the relative strength of the parties. The appellant used a pistol upon the deceased, and contends that he did so because he believed that the deceased was armed and was about to attack him with a pistol. Under these circumstances, a charge on the relative strength of the parties was not called for. Vann v. State, 45 Tex. Cr. R. 434, 77 S. W. 813, 108 Am. St. Rep. 961; Patterson v. State, 87 Tex. Cr. R. 101, 221 S. W. 596; Ballard v. State, 71 Tex. Cr. R. 587, 160 S. W. 716. The state's theory, arising from the testimony, was that the deceased went to appellant's room to hand him a book which the appellant had previously demanded, which contained some data bearing upon a settlement between the two, and that before the shooting took place the deceased told the appellant that he was bringing the book. In submitting the converse of appellant's right of self-defense, from the state's standpoint, this phase of the case was presented to the jury. Appellant's complaint of it, we think, is not sound. See Branch's Ann. Tex. Penal Code, § 1942; Humphries v. State, 25 Tex. App. 127, 7 S. W. 663, and other cases collated by Mr. Branch in the section mentioned to the effect that it is not improper to charge on the state's theory.

The wife of the deceased testified that appellant came and said, "Uncle Bethel, I want the cotton book;" that the deceased replied that he would look for it in a minute; that, after some further conversation, the appellant left the room in a bad humor, and went to his own room; that the deceased took the book and went to appellant's door, and said, "Claude, open the door; here is your book;" that immediately shots were fired.

The witness Champion testified that he lived near the deceased; that he heard shots fired; that in a short time, quicker than a man could usually walk the distance, he heard some one call him, and say: "Come to me quick. This is Bethel. I am not going to hurt you. Claude has killed me; he shot me; come to me quick; I can't live but a few minutes." Deceased told the witness how the shooting took place. He said that it was about a settlement; that it was principally because he...