Brown v. State

• Decision Date: 28 April 1920
• Docket Number: (No. 5695.)
• Citation: 222 S.W. 252
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 252

222 S.W. 252

BROWN v. STATE.

(No. 5695.)

Court of Criminal Appeals of Texas.

April 28, 1920.

Rehearing Denied June 9, 1920.

Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.

D. Brown was convicted of manslaughter, and appeals. Affirmed.

S. M. Adams, C. C. Watson, and V. E. Middlebrook, all of Nacogdoches, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The appellant shot and killed Alex Escow, was indicted for murder, and convicted of manslaughter, and punishment fixed at confinement in the penitentiary for two years.

On the 16th of May, 1918, Orange Escow, a brother of deceased, killed Jackson Carnelly, who was a cousin of appellant and a deputy sheriff, in a field near the home of deceased. Excitement followed the homicide. A posse, of which appellant was a member, was formed, and, on suggestion of search of Alex Escow's home, a remark in the hearing of appellant was made that the Escow negroes were dangerous. On the following afternoon, believing that the wife of deceased had knowledge of the whereabouts of Orange Escow and was suppressing the information, the appellant, in company with Smith and Davis, went to the home of deceased, and while there the homicide took place. There is but slight conflict in the testimony relating the incidents of the transaction. Stating them as gathered from appellant's testimony, he and his companions had been deputized to aid in the apprehension of Orange Escow. They went by automobile, a distance of about 11 miles, to the home of the deceased. Davis and Smith went into the house; appellant, observing a negro attempt to run out, followed him, and on reaching the back gallery Davis and Smith were engaged in conversation with the wife of deceased, trying to get her to tell what she knew about the murder. Pausing but a short time, he followed the negro who had run out of the house, and ordered him to go in the lot, and shortly after reaching the lot he heard screaming at the house. There were several other young negroes about, and they were ordered by appellant to go in the lot. A negro boy, the son of deceased, came from the field on a mule about this time, and the deceased, with a stick in one hand and a bucket in the other, was walking behind him. Quoting from appellant:

"When deceased was up about fifteen or twenty steps of me I told him to stop, and he stopped, and I told him that no one was going to the house; that the old negro woman was at the house, and they were trying to make her tell where the murderer had gone; and he said he was going to the house. I told him to stop, that he was not going to the house, and for him to stop there, he would be all right there; and he said he was going to the house; if I didn't get out of the trail and let him go to the house he would kill me with the stick. He then started towards me, and I backed up two or three steps, maybe four or five, and I had my gun up to my shoulder. I motioned to him to stop. He kept on coming. From his appearance and looks I saw he was coming, and if I had not run or shot him or done something he would have knocked me in the head with that stick. I had been there the day before, and found a gun out there. I didn't know but what they had a gun there. They were all over the country. He was coming straight towards me when I shot him. My gun was up, and I walked backward, and I told him to stop."

From his cross-examination it appeared that he directed the younger members of the family to stay in the lot. They claimed that he told them to get in the wagon. He said he did not know what Davis and Smith did to the woman, but he heard her screaming, hollering for help, and praying, but did not think they were going to hurt her. He said that he thought the old negro woman hushed hollering about the time that the old man reached the appellant; that he supposed deceased heard her hollering, and was coming to ascertain what was the matter; that he was told by appellant that no one was going to hurt her.

Before the killing took place the companions of appellant, Davis and Smith, put a rope around the neck of the wife of the deceased, put the rope over a rafter, and pulled her up off of the floor. During their assault upon her she was screaming and calling for help in a loud voice. The younger members of the family, who were congregated in a wagon at the lot, were also screaming. There was evidence that the deceased was in the habit of walking with a stick, and that at the time he was killed he had his walking stick. Several state witnesses declared that he made no demonstration with it, and that appellant did not retreat, but shot the deceased as he approached.

The appellant assails as error the action of the court in refusing to instruct the jury upon the law of justifiable homicide. Under no phase of the evidence was the homicide justifiable; appellant's conduct deprived him of the right of perfect self-defense. If the deceased assaulted appellant in the manner described by him, the attack was provoked by appellant's unlawful acts, and the homicide to avert injury to himself was unlawful. The deceased had the right to protect his home and his family (Richardson v. State, 7 Tex. App. 486; Wells v. State, 63 Tex. Cr. R. 618, 141 S. W. 96; Ross v. State, 10 Tex. App. 455, 38 Am. Rep. 643), and to resist unlawful detention of his person, and in the interference with the exercise by the deceased of these rights the appellant was the aggressor. He was a trespasser upon deceased's premises, and without warrant in law put deceased under such restraint as was tantamount to an illegal arrest. His acts were unlawful, and sufficient and reasonably calculated to provoke the difficulty. Ross v. State, 10 Tex. App. 458, 38 Am. Rep. 643; Peter v. State, 23 Tex. App. 684, 5 S. W. 228; Goodman v. State, 4 Tex. App. 349; Williams v. State, 41 Tex. Cr. R. 365, 54 S. W. 759; Miers v. State, 34 Tex. Cr. R. 161, 29 S. W. 1074, 53 Am. St. Rep. 705; Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836.

The fact that deceased stopped when appellant first ordered him to do so, and presented his gun, and that he afterwards advanced, threatening injury to appellant if he obstructed his progress to his home, did not confer upon appellant the right to kill deceased. In restraining deceased by force of an assault with a shotgun he was guilty of a continuous assault. Alford v. State, 8 Tex. App. 545; Johnson v. State, 5 Tex. App. 47. The deceased had a right to resist it to regain his liberty and to go to his home. These rights continued, notwithstanding he stopped when the appellant first commanded him to do so. There was no abandonment of the aggression on the part of the appellant, so long as he opposed by force the freedom of action of deceased. Woods v. State, 3 Tex. App. 204; Maner v. State, 8 Tex. App. 361; Staples v. State, 14 Tex. App. 136.

If, as claimed by appellant, he was ignorant of the character of force in use by his companions in making the wife of the deceased divulge facts within her knowledge, such ignorance would not render his acts lawful nor the homicide justifiable. He was aware that in making the woman disclose the facts within her knowledge the treatment of her by his companions was such as to cause her to utter screams, calls for help, and prayers for mercy.

Whether her outcries continued up to the moment the shot was fired or not, they were heard by the deceased and by the appellant before the...