Cain v. State

• Citation: 154 Tex.Crim. 284,226 S.W.2d 640
• Decision Date: 18 January 1950
• Docket Number: No. 24599,24599
• Parties: CAIN v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 640

226 S.W.2d 640

154 Tex.Crim. 284

CAIN v. STATE.

No. 24599.

Court of Criminal Appeals of Texas.

Jan. 18, 1950.

Rehearing Denied Feb. 22, 1950.

Polk Shelton, Austin, for appellant.

R. J. (Bob) Long, District Attorney, Austin, Thomas D. Blackwell, Asst. Dist. Atty., Austin, George P. Blackburn, State's Atty., Austin, for the State.

WOODLEY, Judge.

Appellant was convicted of the offense of murder with malice, and his punishment was assessed at eighteen years in the penitentiary, for the killing of Daniel J. McMillan.

The facts from the standpoint of the state and quoted from the state's brief are these:

'The appellant was the third husband of Roberta Heath. She had previously been twice married to Dan McMillen, her first husband, the deceased, once married to W. O. Thompson, and twice married to the appellant, Milton Cain, as his second wife. Roberta Heath was the mother of two small children by Dan McMillen. Appellant and Roberta had no children. Appellant and Roberta married the last time on October 14, 1948, and after spending a few weeks in West Texas they separated and Roberta returned to Austin about five days before the shooting and was living with her parents. The shooting occurred about 9 P.M. on Thursday, November 18, 1948. The appellant stayed at the Heath residence on the Saturday night preceding the shooting, but he had been asked by Mr. and Mrs. Heath not to come to their house any more until his trouble with their daughter was settled. The appellant did not return to the Heath residence until the night of the shooting.

'Roberta had her two children with her at the Heath residence. Dan McMillen, the father of the children, had been invited by the grandparents to visit his children in their home. On the evening of November 18, 1948, the appellant borrowed a deer rifle from a friend and rode to the Heath home with his brother-in-law, Bobby Heath, and told Bobby that he was going to kill Dan McMillen. The appellant went to the rear of the Heath home and without invitation or knocking, broke and entered through a locked screen door and a locked outside door. He found Mr. and Mrs. Heath, their grandchildren and Dan McMillen in the house. Roberta Heath was not at home at that time. Without a word of warning, the appellant shot Dan J. McMillen once through the right side of the body, causing his death. As Dan McMillen fell to the floor, he fired one shot from a pistol. This shot missed the appellant and lodged in the ceiling of the Heath home. The appellant left the scene and turned himself over to an officer of the law to whom he admitted the killing.'

The evidence from the standpoint of appellant discloses previous trouble between appellant and deceased, including threats made by the deceased against appellant. All such differences and difficulties were apparently due to jealousy and to their marriages and relations with Roberta.

Appellant testified that on the evening of November 18, 1948, he called the Heath residence by telephone, and asked for Roberta; that Mrs. Heath answered and told him Roberta was not there and hung up; that he called again and the deceased answered and said, 'Its none of your business whether she is here or not.' That 30 or 35 minutes later he went to the Heath residence to see if Roberta was there, and to see 'what the score was.' That he pulled the latch off the screen door and went in. That he saw Roberta there. That she was on the bed with her head in deceased's lap. That after entering the house he saw the deceased through a window between the rooms, as he was raising off the bed with a small gun in his hand. That the pistol was pointed in his direction and deceased fired. That he then shot deceased because he was scared deceased would kill him.

The court, in his charge to the jury, submitted the law of self-defense but qualified appellant's right of self-defense by instructing the jury on the law of provoking the difficulty. Also the charge contained an instruction on the presumption from the use of a deadly weapon by deceased.

Appellant excepted to the charge of the court and directed exceptions particularly to these instructions.

In paragraph 9c the jury was instructed as follows: 'You are further charged that if you believe from the evidence that the deceased fired a pistol at defendant, the law presumes that he intended to kill the defendant.'

Appellant excepted to such charge as not properly instructing the jury 'of the facts in this case,' and embodied in his exception a request that the jury be further instructed that 'when a homicide takes place and the deceased has a deadly weapon the nature of which being a pistol that the evidence raises the issue of the use of the deadly weapon by the deceased, and that it is an absolute presumption that the deceased intended to use the deadly weapon to take the life of the defendant.'

Appellant was not entitled to such a charge. Mere possession of a deadly weapon by the deceased does not raise the presumption provided by Art. 1223, P.C. It is the use of such weapon in making an assault that raises the presumption, not its mere possession.

Appellant further excepted to such charge on the ground that same was upon the weight of the evidence, too restrictive to the facts in the case and placed the burden of proof upon the defendant.

The charge as given states the law as applied to the testimony as given by the defendant. We cannot agree with appellant's contention that the court should instruct the jury as to an assault by presenting a pistol where the testimony requiring such charge is to the effect that the assault by deceased on appellant was made by firing a pistol.

In connection with, and as a limitation on the law of self-defense, the court charged the jury as follows:

'11. The jury are further instructed that if you believe from the evidence, beyound a reasonable doubt, that the defendant sought the meeting with deceased for the purpose of slaying deceased, and having found him, did some act, or used some language, or did both, with intent to produce the occasion and bring on the difficulty, and that the same under the...