Fambrough v. Wagley

Decision Date24 March 1943
Docket NumberNo. 8036.,8036.
Citation169 S.W.2d 478
PartiesFAMBROUGH v. WAGLEY et al.
CourtTexas Supreme Court

Frank Sparks, of Eastland, and Floyd Jones and D. T. Bowles, both of Breckenridge, for petitioner.

Grisham & Grisham, of Eastland, for respondents.

CRITZ, Justice.

This case has quite a history. In the criminal prosecution relating hereto, Fambrough was twice convicted, and both convictions were appealed. Fambro v. State, 139 Tex.Cr.R. 480, 141 S.W.2d 354, and Fambro v. State, 142 Tex.Cr.R. 473, 154 S.W.2d 840. It will be noted that the name in the criminal prosecution was spelled Fambro, while the name in this civil suit is spelled Fambrough.

This suit was filed in the District Court of Stephens County by Mrs. Dave Wagley, surviving wife of Dave Wagley, deceased, and A. L. Wagley and Annie J. Wagley, father and mother of the deceased, against Alex Fambrough, to recover damages, actual and exemplary, for the alleged unlawful, wrongful, and malicious killing of Dave Wagley by Alex Fambrough. Fambrough defended on the ground that he killed Dave Wagley in his own necessary self-defense. Trial in the district court, where the case was submitted to a jury on special issues, resulted in a verdict and judgment for Fambrough. This judgment was reversed and this cause remanded to the district court for a new trial by the Eastland Court of Civil Appeals. 163 S.W.2d 1072. Fambrough brings error.

It appears from the record before us that Fambrough was the record owner of certain lots in the abandoned townsite of Wayland, in Stephens County, Texas. Dave Wagley seems to have been in possession of such lots as the tenant of a third party. Fambrough went on the lots for the purpose of removing some tubing and rods from a water well located thereon. Fambrough claimed that such property belonged to him. Dave Wagley ordered Fambrough to leave the premises, and in the difficulty which ensued Fambrough killed Dave Wagley by shooting him with a gun.

During the trial of the case Mrs. Wagley et al. introduced in evidence the title papers under which the landlord of Dave Wagley claimed. Also Fambrough introduced in evidence his title papers. At the close of the evidence, and at the proper time, Mrs. Wagley et al. requested the trial court to give the following special charge to the jury: "Testimony with reference to title matters have been admitted before you, which testimony is here limited, and you will consider same for the purpose of determining the issue as to whether the Defendant acted with malice, and you will consider it upon no other issue."

The above charge was refused by the trial court. The opinion of the Court of Civil Appeals holds that such refusal constituted reversible error.

As already stated, Mrs. Wagley et al. sued Fambrough for damages, actual and exemplary, resulting from his having killed Dave Wagley unlawfully, wrongfully, and maliciously. Fambrough defended on the ground that he committed the homicide in his own necessary self-defense. The evidence raised an issue of fact on that defense. It is settled by our decisions that, with the exception of the rule of evidence which gives to a person accused of crime the benefit of a reasonable doubt, the law of self-defense is the same in both civil and criminal cases. March v. Walker, 48 Tex. 372; 4 Tex.Jur. p. 984 et seq., and authorities there cited. It is settled by the decisions of our Court of Criminal Appeals that, in the trial of a criminal case, motive or malice is one of the main issues to be tried. It is further held by such court that it is not necessary to limit testimony only going to prove a main issue in the case, such as defendant's motive and malice in the commission of the alleged offense for which he is on trial. Hall v. State, 31 Tex. Cr.R. 565, 21 S.W. 368; Brown v. State, 24 Tex.App. 170, 5 S.W. 685; Hudson v. State, 28 Tex.App. 323, 341, 13 S.W. 388; Leeper and Powell v. State, 29 Tex.App. 63, 69, 14 S.W. 398; Malcek v. State, 33 Tex.Cr.R. 14, 20, 24 S.W. 417; Hamilton v. State, 41 Tex.Cr.R. 644, 652, 56 S.W. 926; Terry v. State, 45 Tex.Cr.R. 264, 76 S.W. 928; Jenkins v. State, 59 Tex.Cr.R. 475, 478, 128 S.W. 1113; Wilson v. State, 60 Tex.Cr.R. 1, 129 S.W. 613; Harrelson v. State, 60 Tex.Cr.R. 534, 543, 132 S.W. 783, 786; Millican v. State, 63 Tex.Cr.R. 440, 140 S.W. 1136, 1142; Mitchell v. State, 65 Tex.Cr.R. 545, 144 S.W. 1006, 1010; Boyd v. State, 67 Tex.Cr.R. 541, 150 S.W. 612; Brock v. State, 68 Tex.Cr.R. 533, 151 S.W 801; Mims v. State, 68 Tex.Cr.R. 432, 153 S.W. 321; Gradington v. State, 69 Tex.Cr. R. 595, 155 S.W. 210. The rule in the trial of civil cases is the same. Missouri Pac. R. Co. v. Johnson, 72 Tex. 95, 10 S.W. 325; 24 Tex.Jur. p. 581, § 97.

Any rule than the one above announced would make it necessary for the trial court to single out each item of testimony in the record, and charge the jury for what purpose it could be considered. Manifestly, such a requirement would extend charges to an unreasonable length. Also, such a requirement would lead to many reversals, because it would be almost impossible to comply therewith without violating the rule against comment on the weight to be given to the testimony. Rule 272. The rule just mentioned specifically prohibits the trial judge from including in his charge any "comment on the weight of the evidence." The very requested charge here under consideration violated this rule. If it had been given, it would have instructed the jury that it must consider the evidence on title matters for the purpose of determining the issue of defendant's malice. There is no escape from this conclusion, because the requested charge says: "and you will consider same for the purposes of determining the issue as to whether defendant acted with malice, * * *." Leach v. State, 46 Tex.Cr.R. 507, 81 S.W. 733; Santee v. State, Tex.Cr.App., 37 S.W. 436; Hudson v. State, 43 Tex.Cr.R. 420, 66 S.W. 668; Reese v. State, 44 Tex.Cr.R. 34, 68 S.W. 283; Cavaness v. State, 45 Tex.Cr.R. 209, 74 S.W. 908; Cortez v. State, Tex.Cr.App., 74 S.W. 907. Of course, "When evidence is introduced for a special purpose that is not competent upon the main issue, it is the duty of the court in the charge to confine its consideration to the particular issue upon which it is relevant." Missouri Pac. R. Co. v. Johnson, supra [72 Tex. 95, 10 S.W. 326]. Such a charge, however, must be so framed as not to comment on the weight of evidence. For the reasons stated, the trial court did not err in refusing to give the limiting charge above quoted.

One of Fambrough's attorneys made the following argument to the jury: "Now, Gentlemen of the Jury, when you return your verdict, we ask you to do so as you would have it done if Mr. Fambrough occupied the places that you occupy and you were on the outside, out here in the place that Mr. Fambrough occupies."

Mrs. Wagley et al. promptly objected to the above argument as improper, and requested the court to instruct the jury to disregard it. The court in effect overruled the objection, and Mrs. Wagley et al. excepted. The opinion of the Court of Civil Appeals holds that the above argument was improper and constitutes reversible error. Such ruling is presented here for review. Before deciding whether or not the above argument constitutes reversible error, we think it proper to review the principal authorities. Such authorities are the same as are reviewed in the opinion of the Court of Civil Appeals.

In Rio Grande, E. P. & S. F. R. Co. v. Dupree, Tex.Com.App., 55 S.W.2d 522, 525, 526, it was held that the following argument was not improper: "Gentlemen of the Jury, * * *. Remember that when you render your verdict, to do unto others as you would have them do unto you."

In Texas & P. R. Co. v. Short, Tex.Civ. App., 62 S.W.2d 995, 1000, writ refused, it was held that the following argument did not constitute reversible error: "Give her what you would have under the Golden Rule, or treat her as you would wish to be treated under the same or similar circumstances."

The decision that the above argument did not constitute reversible error was expressly based on the holding in the Dupree case, supra. This Court refused writ of error, thereby approving the holding.

In Southern Ice & Utilities Co. v. Richardson, Tex.Civ.App., 60 S.W.2d 308, 311, Richardson and wife sued Southern Ice & Utilities Co. for damages for personal injuries sustained by the wife. It was contended by the Richardsons that Mrs. Richardson had been caused to miscarry as a result of her injuries. The defendant's attorney stated to the jury in his argument that, "This case ought to be before a justice court." Plaintiffs' attorney stated in his argument: "Gentlemen, I say that this is a case that should require the attention of a jury of Eastland County. I say the striking down of a human life, even in its inception, is something that should address itself to the intelligent minds of this jury of twelve men. How would you feel about it if it was your wife and under the circumstances?"

The Court of Civil Appeals condemned the above argument, but held that...

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