Deneaner v. State

• Decision Date: 06 April 1910
• Parties: DENEANER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 201

127 S.W. 201

DENEANER v. STATE.

Court of Criminal Appeals of Texas.

April 6, 1910.

Appeal from District Court, Waller County; Wells Thompson, Judge.

Frank Deneaner was convicted of homicide, and he appeals. Reversed and remanded.

Brockman, Kahn & Williams, A. G. Board, Doremus & Butler, Lamar Bathea, Harvey & McDade, R. E. Hanney, and A. G. Lipscomb, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

This is a companion case to that of Fizina v. State, which is reported in 100 S. W. 394. The homicide on which this charge of murder was based grew out of the same facts as are set forth at some length in the opinion of the court in the Fizina Case, though the evidence is far from being identical, and there were some issues raised and some testimony introduced in this case that does not appear in the Fizina Case. The statement of facts is quite voluminous and is replete with contradictions, and it would require more time and space to make a detailed statement of the facts than seems essential or necessary in view of the matters which will be hereafter discussed. So far as material to an understanding of the opinion, the facts of the case will be stated hereafter. For the most part the case was very well tried; but we think there was more than one error committed by the trial court, and that some of these errors were of such importance and in respect to such material questions as must of necessity reverse the case.

1. The most important and obviously the most certain error was the action of the court in failing to give in charge to the jury article 676 of our Penal Code, to this effect: "When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapons or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury." In addition to other testimony which rendered it necessary to give this charge was the following testimony of appellant: "I saw him disappear in the house and go in the direction of the gun. Then I tried to jerk my gun away from Angelina Vince. She had kept holding it and trying to get it away from me, and I jerking her, and she jerking me, and I wanted to get out of the way, and pulling at the gun, I pulled her off the gallery and out in the yard, and while she and I were struggling that way, just after we got out in the yard, and while she still had hold of my gun, Ross Mongonia came back to the door from the inside with his gun in his hand, and at that instant Jennie Mongonia stepped towards the door. She was standing about the middle of the gallery and stepped towards Ross to keep him from coming out, and just at that instant he fired at John Fizina, who had jerked his gun loose from Peter Vince, or Peter had turned it loose, I don't know which, when Ross run in the house, and had gotten off of the north end of the gallery, and was going away, north, and had his back to Mongonia when Mongonia shot at him. And as Mongonia shot, John turned around quick and without taking aim fired one barrel of his double-barreled shotgun at Mongonia, but missed Mongonia and struck Mrs. Mongonia, or I suppose he must have, because she instantly fell forward, partly in the door and partly on the gallery, and when she fell Ross Mongonia was right in the door with his gun in his hand. John did not lay his gun on anything to shoot, he was not that close to the end of the gallery."

Under all of the decisions, a shotgun used as a firearm is a "deadly weapon," and under an unbroken line of decisions, since before the days of Kendall v. State, 8 Tex. App. 569, it is essential to give this article of our Penal Code in charge whenever and wherever there is evidence raising this issue. The fact that appellant was not the party fired upon, or that he was a companion of the other party assaulted, does not alter the case. This precise question came before the court in the case of Yardley v. State, 50 Tex. Cr. R. 644, 100 S. W. 399, 123 Am. St. Rep. 869, where, among other things, the court say: "Appellant reserved an exception to the action of the court in failing to charge article 676, Pen. Code, to wit, that the facts of this case imperatively required the court to charge on the presumption of the weapon that deceased was shown to have used; that in such case the court should have told the jury, if the deceased had unlawfully attacked Woodward, and in such case appellant had the right to slay at once. An inspection of the court's charge discloses that, while he gave a charge on appellant's right to act on behalf of Woodward under article 675, he nowhere charged the presumption from the use of a deadly weapon by deceased under article 676. All the authorities teach that in a proper case this charge is imperatively demanded, and a refusal to give it is error. See Kendall v. State, 8 Tex. App. 569; Jones v. State, 17 Tex. App. 602; Cochran v. State, 28 Tex. App. 422, 13 S. W. 651; and other authorities cited in subdivision 1165a, Pen. Code. And see Scott v. State 81 S. W. 950. In this case it occurs to us that the crucial point was: Who began the difficulty? If Woodward began the difficulty, or if Woodward unlawfully provoked deceased to make the attack in order to have a pretext for killing him, and appellant was cognizant of that fact, then the right of defense of another did not accrue to him at all; but, if when appellant and Woodward went down to the clubhouse, and a casual difficulty occurred between Woodward and deceased, and deceased became the aggressor and made the first assault on Woodward, then the right of self-defense did accrue to Woodward and to his companion, Yardley. There is no question that deceased, Carroll, used a deadly weapon. Most, if not all, the witnesses, state that he fired the first shot with a Winchester rifle. Accordingly, appellant was entitled to a charge based on the presumption following from the use of a deadly weapon by deceased." The following authorities also sustain this proposition: Renow v. State, 56 Tex. Cr. R. 343, 120 S. W. 174; Hall v. State, 43 Tex. Cr. R. 479, 66 S. W. 783; Jones v. State, 17 Tex. App. 602; Scott v. State, 46 Tex. Cr. R. 305, 81 S. W. 950; Cooper v. State, 48 Tex. Cr. R. 36, 85 S. W. 1059; Cochran v. State, 28 Tex. App. 422, 13 S. W. 651; Ward v. State, 30 Tex. App. 687, 18 S. W. 793; Ivory v. State, 48 Tex. Cr. R. 279, 87 S. W. 699; Paderes v. State, 45 S. W. 914.

2. An important question is raised in respect to the refusal of the court to permit appellant to prove by a number of witnesses, including Tony Fizina, that they saw appellant and his two codefendants, John and Joe Fizina, within about 15 minutes after the shooting of Jennie Mongonia, deceased, which shooting they heard, and at about the time it would take appellant and his codefendants to reach home from the scene of the shooting, across the field at a rapid walk; the distance being about a half mile. Just what is res gestæ, and when a statement shall be treated as hearsay, or self-serving declaration, is among the most difficult questions that we are called upon to solve. Not a few cases have held in respect to the matter of time that a statement more remote in time than the one here offered would nevertheless be admissible as res gestæ. We think, however, that the question of time is not the sole test, but that it is a matter to be viewed and decided with reference to other indicia and testimony. In this case, if we look to the nature or character of the evidence sought to be introduced, it seems to lack the element of spontaneity, and does not impress us as being res gestæ, or come within the definition of the event speaking through the witness, but rather would be narrative of past...