Caraway v. State
| Decision Date | 23 November 1971 |
| Docket Number | No. 44187,44187 |
| Citation | 489 S.W.2d 106 |
| Parties | Thomas Franklin CARAWAY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
James A. Moore, Lynn C. Hensley, Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell and Ray Montgomery, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for murder with malice aforethought. Trial was before a jury, with the punishment assessed at death.
Appellant asserts eight grounds of error; six of the grounds relate to the court's charge and two to the appellant's confession being admitted into evidence.
The indictment alleged that the appellant, on December 29, 1968, 'did with malice aforethought kill Nathan Lee Webb by choking him with a cord.'
The evidence showed that appellant met two young boys in front of a diner in Houston. The appellant told the two boys, 'I will show you how to get a queer.' The trio then went down the street to a point where the deceased was seated in a car. Appellant approached the deceased and a conversation ensued. The deceased offered five dollars to any one of the three who would permit him to commit oral sodomy. The three boys got into the car with the deceased. The group then went to the deceased's apartment, stopping on the way to buy beer. When the deceased left the car to buy the beer, appellant told the other boys that he was going to knock the deceased out and get his money. At the time, appellant was carrying a butcher knife.
Once at the apartment, appellant and one of the boys, Hill, stripped to their underwear. The deceased began playing with appellant's penis. He also committed oral sodomy on either two or three of the boys.
When the deceased left the room to go to the restroom, the appellant cut a venetian blind cord with the butcher knife and hid it under a pillow on the bed. Also, at this time, appellant stated that he was going to kill the decedent. When the deceased returned to the room, appellant induced him to lie on his stomach on the bed, on the pretext that he was going to have anal intercourse with him. When the deceased lay down, appellant got on top of him. He then reached under the pillow for the cord, placed it around the deceased's neck, and began choking him. The appellant held one end of the cord, and Hill held the other.
A struggle ensued, and the three fell to the floor. Appellant then began hitting the deceased under the chin, saying that he was trying to break the deceased's neck. The appellant got up and began looking through the drawers in the house, leaving Hill still holding the deceased. The appellant then relieved Hill, but by this time, Webb was dead.
The group left the apartment, taking a brief case containing barber tools, some money, and the keys to the deceased's automobile. They left in the car, appellant and Hill returning to a hotel where appellant's girl friend was staying, the other boy having been let out of the car earlier.
Appellant joined his girl friend and drove to several points, including a motel where the barber tools were sold.
Appellant testified in his own behalf. He admitted killing the deceased, but denied doing so intentionally. He contended he killed in self-defense. According to his testimony, when his two companions left the room to go to the restroom, the deceased gave him a pill of some kind, and ordered appellant to have anal intercourse with him. Appellant refused. The deceased threatened to do bodily harm to him unless he would consent. Decedent then went to the restroom, at which time appellant cut the cord and put it under the pillow.
The State's case in chief was based on the testimony of appellant's girl friend, who testified as to his coming and going and statements he made to her, the testimony of one of the boys who was with appellant, and appellant's confession.
Appellant contends in his first ground of error that the trial court erred in failing to charge on the law of murder without malice. Basically, appellant contends that the issue of murder without malice was raised by his testimony concerning the threats made to him by the deceased and his resulting state of mind. His testimony was as follows:
'A He told me I would have to commit sodomy with him.
'Q Tell us exactly what he told you.
'A He told me I would have to * * * (have anal intercourse with him.)
'Q What did you tell him?
'A I told him I didn't want to.
'Q What did he tell you would happen if you didn't?
'A He told me he had been an ex-pro wrestler, if I didn't, I would see, he would hurt me in some form or other, he would take care of me.
'Q Did you tell him you might go to the police and tell on him?
'A I didn't tell him nothing about going to the police, but he said, 'If you do go to the police, all they will do is set a bond on me and I will get out and get you sooner or later.'
'Q Said what?
'A He said, 'All they will do is set a bond on me and I will get out and get you later on, sooner or later."
'Q Were you afraid of Nathan Lee Webb on December 29, 1968?
A Yes, sir, I was.
'Q Did you think he was going to hurt you?
'A Yes, sir.
'Q Did he tell you he was going to hurt you?
'A Yes, sir.
'Q There was no question in your mind?
'A No, sir.'
Art. 1257c, Vernon's Ann.P.C., requires that the court charge on the law of murder without malice 'where the facts present the issue.' It defines murder without malice as:
'a voluntary homicide committed * * * under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause 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 * * *.'
We do not feel that a charge on the law of murder without malice was warranted under the facts of this case.
The court charged the jury that:
'* * * if you should believe from the evidence beyond a reasonable doubt that the Defendant * * * while in the act of preparing for or executing the offense of robbery, did with malice aforethought kill Nathan Lee Webb by choking him with a cord * * * you will find him guilty of the offense of murder with malice aforethought.
'But if you do not so find and believe from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, then you will find the Defendant, Thomas Franklin Caraway, not guilty.'
Thus, under the instructions of this charge, if the jury did not believe that appellant killed the deceased while either preparing for or committing the offense of robbery, they would have no alternative but to acquit. On the other hand, if they did believe that he killed the deceased while preparing for or committing the act of robbery, then there would be no necessity for a charge on the law of murder without malice, for the affirmative finding of robbery by the jury would negate the possibility of murder without malice. See: Dickson v. State, 463 S.W.2d 20 (Tex.Cr.App.1971); Leza v. State, 149 Tex.Cr.App. 448, 195 S.W.2d 552 (1946); cf. David v. State, 453 S.W.2d 172 (Tex.Cr.App.1970); Smith v. State, 168 Tex.Cr.R. 102, 323 S.W.2d 443 (1959); Rayson v. State, 160 Tex.Cr.R. 103, 267 S.W.2d 153 (1954).
Appellant complains the court did not charge on self-defense. The charge, as worded, would obviate the necessity of charging on self-defense. If the jury did not believe that appellant killed the deceased while preparing for or committing the act of robbery, they had no alternative but to acquit. On the other hand, if they did believe that he so killed, their affirmative finding of robbery would preclude a charge on self-defense, for appellant would have forfeited his right of self-defense by committing robbery, Dickson v. State, 463 S.W.2d 20 (Tex.Cr.App.1970), and cases therein cited.
Further, a charge on the law of self-defense was not required because there was no evidence that at the time of the killing, the deceased was attacking appellant, or was in any executing the threats he made. Art. 1224, V.A.P.C., Gonzales v. State, 426 S.W.2d 859 (Tex.Cr.App.1968); Henderson v. State, 402 S.W.2d 180 (Tex.Cr.App.1966); Johnson v. State, 167 Tex.Cr.R. 289, 319 S.W.2d 720 (1958); Herrera v. State, 159 Tex.Cr.R. 175, 261 S.W.2d 706 (1953).
Appellant also complains that the court erred in charging the jury under Art. 42, V.A.P.C. He claims that the indictment alleged only murder with malice aforethought, Not an accidental killing committed while preparing for or executing a felony, and that therefore the indictment failed to inform him as to the accusation he needed to meet.
This Court has held that the State need not plead its evidence in the indictment. Silva v. State, 112 Tex.Cr.R. 223, 15 S.W.2d 1046 (1929); Jones v. State, 89 Tex.Cr.R. 355, 231 S.W. 122 (1921).
This Court has also held that it is proper for a trial court to refuse to charge the jury on the law of accident as a defense in murder cases, where the killing was committed while the defendant was preparing or committing a felony. Hodges v. State, 160 Tex.Cr.R. 579, 272 S.W.2d 902 (1954); Smith v. State, 154 Tex.Cr.R. 234, 225 S.W.2d 846 (1949); McElroy v. State, 134 Tex.Cr.R. 445, 115 S.W.2d 971 (1938). Further, this Court has held that an instruction eliminating accident as a defense, under Art. 42, V.A.P.C. is proper, Marrufo v. State, 172 Tex.Cr.R. 398, 357 S.W.2d 761 (1962); Smith v. State, supra; McElroy v. State, supra, notwithstanding the fact that the indictment alleged only murder with malice. Hodges v. State, 160 Tex.Cr.R. 579, 272 S.W.2d 902 (1954).
In Smith v. State, supra, the portion of the charge of the court based on Art. 42, V.A.P.C., which was approved on appeal, was identical with a portion of the charge in the instant case.
Further, it appears that the court, in applying the law to the facts in the charge did not charge under Art. 42, V.A.P.C....
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