Borroum v. State

• Decision Date: 08 June 1927
• Docket Number: (No. 10215.)
• Citation: 8 S.W.2d 153
• Parties: BORROUM v. STATE.
• Court: Texas Court of Criminal Appeals

8 S.W.2d 153

BORROUM v. STATE.

(No. 10215.)

Court of Criminal Appeals of Texas.

June 8, 1927.

Rehearing Denied June 28, 1928.

Commissioners' Decision.

Appeal from District Court, Bee County; T. M. Cox, Judge.

Beverly Borroum was convicted of manslaughter, and he appeals. Affirmed.

H. S. Bonham and James R. Dougherty, both of Beeville, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

BETHEA, J.

The appellant was convicted of manslaughter, and his punishment fixed at five years in the penitentiary.

The killing occurred early in the morning on premises belonging to appellant. The trouble arose over a mule breaking into a field. Deceased was a tenant farmer on appellant's place, and a dispute arose over whose duty it was to repair the fence. During the course of the argument, deceased advanced on appellant with a bar of iron drawn back and said, "You are a God damned liar." Appellant then turned, jumped over the fence, and ran to his house. Deceased returned to his milking. Appellant returned to the lot in a minute or two with his gun in his hands, and another conversation took place. The appellant then walked around on the other side of the barn, where his wife pleaded with him and asked him to leave, to which he replied that he was not going to bother any one. Appellant's wife then grabbed the gun, which discharged into the air. Appellant reloaded the gun, and his wife grabbed it again, saying, "Come let's go — give me the gun," and the gun went off a second time; this time the shot going in the direction of deceased. Appellant reloaded the gun again, saying, "Just get away and leave me alone." At this point, the deceased jumped up, rushed toward appellant with the iron bar drawn back, and said: "You God damned cowardly son of a bitch, you are not game enough to shoot." Appellant then fired the shot that killed deceased. This testimony comes from appellant and his wife.

When appellant ran to the house to get his gun, deceased, retaining possession of the bar of iron, returned to his milking, and, so far as the record shows, did nothing until after the gun had been fired the second time and in his direction.

Bill of exception No. 1 complains of the action of the trial judge in overruling appellant's motion for a new trial on the ground that the jury had received other testimony after they had retired to deliberate. The proof on the motion shows that, after the jury had deliberated for some time, they reported to the court that they could not agree, and the court instructed them to return and continue their deliberations; and that after they returned to the jury room to continue their deliberations the juror Cowie stated, in the presence and hearing of the other jurors, that he had been in the army for some considerable time, and gave the opinion that one shot as deceased was would not stagger back, but would fall practically where he was shot. This was complained of as violative of the rule against the reception of new and material evidence by the jury after retirement. Appellant claimed this evidence was material on the point as to whether or not deceased was advancing on appellant at the time he was shot. In our opinion it does not make any difference, under the facts of this case, whether the deceased was advancing upon appellant or not at the time the shot was fired. If the appellant shot deceased while the latter was milking his cow, he would be guilty of murder; and if he shot deceased while the latter was advancing upon him with the bar of iron, after appellant's gun had been fired twice, the last shot being fired in the direction of deceased, then appellant would unquestionably be guilty of manslaughter. The jury having found appellant guilty of manslaughter, we fail to see where this statement of the juror Cowie could have worked any injury to the appellant.

Bill of exception No. 2 complains of the action of the trial court in extending the term of court for the purpose of considering and allowing an investigation of certain matters set up in appellant's motion for a new trial, together with matters contained in the affidavits of the two jurors. This bill presents no error.

The disposition of bill No. 1 disposes of bill No. 2.

Bills of exception Nos. 3, 4, and 6 are in question and answer form, and we find no certificate of the trial judge that such questions and answers are necessary in order to elucidate the fact or question involved. We are therefore not authorized to consider same. Article 760, C. C. P. 1925; Long v State, 105 Tex. Cr. R. 494, 288 S. W. 1074, and authorities therein cited.

Bill of exception No. 7 complains of the action of the trial court in permitting counsel for the state to withdraw his announcement that the state rested, and in allowing the state to introduce certain additional testimony. We are unable to agree with appellant in this contention, for the reason that this is a matter largely within the discretion of the trial judge, and the bill does not show an abuse of that discretion.

Bill No. 8, as qualified by the trial judge, presents no error.

Appellant filed objection to the charge on the law of self-defense, and refers us to Lyons v. State, 71 Tex. Cr. R. 189, 159 S. W. 1070, as supporting his criticism. We have examined that case, and also those of Carson v. State, 57 Tex. Cr. R. 394, 123 S. W. 590, 136 Am. St. Rep. 981, and Polk v. State, 60 Tex. Cr. R. 499, 132 S. W. 767. Reference to the main charge on self-defense discloses full and complete instructions to the jury that appellant would have been justified in slaying the deceased, Dallas Cox, if deceased, was making, or about to make, an attack on him, as viewed by appellant, from his standpoint. In this respect it differs from the charge in the Lyons Case. Further reference to the main charge reveals that the court did not limit appellant's right of self-defense by any charge on provoking the difficulty.

The undisputed evidence developed by the appellant and his wife called for a charge limiting appellant's right of self-defense by a charge predicated on the idea that appellant provoked the difficulty, and if the court had given such a charge as the facts warranted, then, and in that event, it would have been proper for the court to have told the jury under proper instructions that the appellant would not forfeit his right of self-defense by arming himself in order to defend himself in case deceased Cox did assault him with a bar of iron or any other deadly weapon.

As we view it, the undisputed evidence clearly brings this case within the law of provoking the difficulty, and the right of perfect self-defense is not in the case, and the charge on perfect self-defense complained of by appellant was more favorable to appellant than the law and the undisputed facts justified. Williford v. State, 38 Tex. Cr. R. 393, 42 S. W. 972; Carlile v. State, 96 Tex. Cr. R. 37, 255 S. W. 990, and cases cited.

The misconduct of the juror Cowie discussed above affected the question of perfect self-defense alone, and the undisputed evidence of appellant and his wife places this case beyond the realm of perfect self-defense. Therefore the error would be harmless.

What has been said above regarding the law of self-defense disposes of appellant's complaint of the court's failure to give special charges Nos. 1, 3, and 4, relating to the law of self-defense. However, these charges were fully covered in the court's main charge.

There being no errors in the record, and the facts being amply sufficient to support the verdict, the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

In disposing of the complaint presented in bill of exception No. 1, in our original opinion we used the following language:

"If appellant shot the deceased while the latter was advancing upon him with the bar of iron after appellant's gun had been fired twice, the last shot being fired in the direction of deceased, then appellant would unquestionably be guilty of manslaughter."

Appellant urges in his motion for rehearing that the view thus expressed could only be based upon the assumption that the testimony of appellant and his wife to the effect that the two first shots were fired accidentally is untrue. The language quoted was used in...