Brewer v. State

• Decision Date: 29 October 1941
• Docket Number: No. 21771.,21771.
• Citation: 157 S.W.2d 388
• Parties: BREWER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 388

157 S.W.2d 388

BREWER v. STATE.

No. 21771.

Court of Criminal Appeals of Texas.

October 29, 1941.

Rehearing Denied January 7, 1942.

Commissioners' Decision.

Appeal from Criminal District Court, Tarrant County; Willis M. McGregor, Judge.

Earl Thomas Brewer was convicted of murder, and he appeals.

Reversed and remanded.

Cunningham, Lipscomb & Cole, of Bonham, and Ardell M. Young and Rogers & Spurlock, all of Fort Worth, for appellant.

Marvin H. Brown, Jr., Cr. Dist. Atty., and M. Hendricks Brown, Asst. Cr. Dist. Atty., both of Fort Worth, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

For the murder of Glen Cox by cutting and stabbing him with a knife appellant was convicted and his punishment assessed at ninety-nine years in the penitentiary; from which he appeals to this court.

The deceased, nineteen years of age, and Virginia Brewer, almost fifteen years of age, and daughter of appellant, were sweethearts; they attended the same school; they lived with their respective parents, about two miles apart, in Fannin County. Appellant objected to his daughter's going with and keeping the company of the deceased. He had, on repeated occasions, whipped her for going with him and keeping his company. She had been required, by her father, to return a watch to the deceased, which he had given to her.

These were the conditions existing at the time of the happening of the events just prior to the killing.

A few days prior to the day of the killing, the deceased and Virginia eloped, going to Fort Worth, Texas, where they secured a license and were, in the presence of friends, married.

Upon discovering that they had eloped, appellant began a search for them. He contacted and visited various places, in an effort to ascertain their whereabouts. He sought the advice of officers as to instituting kidnapping charges against deceased. He discussed the matter of annulling the marriage if they had married. During these inquiries, he received information that they had in fact married. As showing his attitude towards deceased, there was evidence to the effect that appellant had stated that he would just as soon his daughter lived with a "nigger" as to live with the deceased and that "he was aiming to blow his head off when he found him."

On the morning of January 10th, 1941, or four days after the marriage, appellant's wife received a post card, signed by the daughter and deceased, showing that they were in Fort Worth, Texas, and advising, among other things, that they were "Sorry we had to do like we did but you know what caused it. Don't know when we'll be home."

Immediately upon receipt of this card, appellant and his wife began preparing to go to Fort Worth, and did, on the afternoon of the same day, arrive in that city. A Deputy Sheriff of Fannin County accompanied them. Upon arrival, inquiry was made of friends as to the couple's whereabouts. They were told that they were at the home of some friends in the city, and that they were married. The person so informing them said that she knew they were married because she was present at the wedding. This party agreed to go with appellant and his wife and to show them where they were staying. Upon reaching the place, appellant and wife and guide entered the house and started up the stairway leading to the second floor. The deceased and his wife, with his arm around her, started down the stairs, meeting them. Upon reaching a point about two-thirds up the stairs, all parties met, when the wife of appellant said to the daughter: "We have come to get you, Virginia. We have the law." According to witnesses for the State, appellant caught hold of his daughter and pulled her down the stairs behind him. Virginia then said to deceased: "Come on, darling."; to which appellant replied: "No, he's not coming," and stepped toward deceased, and, as he did so, struck him in the neck with a small knife, cutting the jugular vein and carotid artery, as a result of which deceased died shortly thereafter, after having walked back up the stairs and into a room.

Witnesses for the State testified that deceased made no demonstration and did not say anything at the time of or prior to the assault by appellant. The State's case showed an unprovoked and unjustified killing. Appellant's contention that the facts authorized no higher punishment than that affixed for murder without malice is overruled.

Appellant admitted the killing, but denied any intent to kill. He justified his act by saying that he was defending himself from what appeared to him to be an attack by deceased with his fist. He also justified his act because of threats of deceased. There was testimony by appellant to the effect that, notwithstanding he had heard, and had been told, that his daughter and deceased were married, yet he did not believe it, and that he was defending his daughter from what he believed was an effort on the part of deceased to ruin her.

The case was submitted upon the issues of murder with and without malice and aggravated assault, together with the several defensive theories.

In submitting the law of murder without malice, the trial court instructed the jury as follows:

"But if you find and believe from the evidence, beyond a reasonable doubt, that the defendant herein, on or about the 10th day of January, 1941, in the County of Tarrant and State of Texas, did voluntarily kill the said Glen Cox by cutting or stabbing the said Glen Cox with a knife as alleged in the indictment, and that such killing, if any, was committed without justification or excuse, and that, at the time the defendant so killed the said Glen Cox, if he did, the defendant was then under the immediate influence of a sudden passion arising from an adequate cause, and that such cause or causes, if any, was or were such as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection, then you will find the defendant guilty of murder without malice, and assess his punishment at confinement in the penitentiary for not less than two years nor more than five years.

"Unless you do so find from the evidence, beyond a reasonable doubt, you will not convict the defendant of murder without malice."

To this charge the appellant excepted because it was upon the weight of the evidence and because it shifted the burden of proof in that, before the jury would be warranted in returning a verdict of murder without malice, they would be required to believe beyond a reasonable doubt that the mind of appellant was incapable of cool reflection at the time he struck the fatal blow. In support of this contention, he cites the cases of: Huddleston v. State, 54 Tex.Cr.R. 93, 112 S.W. 64, 130 Am.St.Rep. 884; Mason v. State, 88 Tex.Cr.R. 642, 228 S.W. 952; Ballew v. State, 139 Tex.Cr.R. 636, 141 S.W.2d 654; Anderson v. State, 99 Tex.Cr.R. 13, 267 S.W. 486.

The charge as given stated a correct legal proposition in that its effect was to instruct the jury that, if appellant killed deceased without justification, under the immediate influence of sudden passion, aroused by an adequate cause, he would be guilty of murder without malice. Under...