Gandy v. State

• Decision Date: 13 March 1940
• Docket Number: No. 20814.,20814.
• Citation: 140 S.W.2d 182
• Parties: GANDY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 182

140 S.W.2d 182

GANDY v. STATE.

No. 20814.

Court of Criminal Appeals of Texas.

March 13, 1940.

Rehearing Denied May 22, 1940.

Appeal from District Court, Limestone County; H. F. Kirby, Judge.

W. W. Gandy was convicted of assault to murder with malice, and he appeals.

Affirmed.

C. S. Farmer, of Waco, and Scott Reed, of Groesbeck, for appellant.

L. L. Geren, Co. Atty., Limestone County, J. B. Engledow, Asst. Co. Atty., and L. W. Shepperd, Sp. Pros., all of Groesbeck, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged by indictment in the district court of Limestone County with assault to murder with malice. The offense is alleged to have been committed on the 16th day of July, 1938. The trial of the case was had on July 5, 1939, and the verdict of the jury resulted in finding the defendant guilty of assault to murder with malice and fixing his punishment at two years in the state penitentiary.

The facts disclose that the prosecuting witness, Hubert Harris, lived within a few miles of the city of Groesbeck and was engaged in farming. He had a watermelon patch in which he raised melons for the market. On the occasion of the trouble, which was Saturday about noon, he had parked his truck loaded with melons near the intersection of an alley with a public street in the business district and in a crowded section, where he prepared to offer his melons for sale. The appellant, W. W. or Bill Gandy, and his brother, Albert Gandy, together with a friend of theirs, approached the prosecuting witness in a manner indicating that they had been angered or insulted by some previous remarks which the prosecuting witness had made concerning them. The appellant announced that he understood that the prosecuting witness wanted to whip or kill some of the Gandys and said, "Here we are". That is probably the most reasonable interpretation of the summary of all the testimony as to what was said. Of the numerous witnesses called by the State, no two understood exactly the same thing to have been said. There is nothing unnatural about this, and there is no material difference in the purport of the statement as they each remembered it. Regardless of the verbiage, the same conclusion must be reached. The Gandy brothers were angry and announced their insult upon their approach in a way that invited the beginning of hostilities. Harris accepted the challenge, for it was no less than such, and instantly made the assault upon the appellant, who apparently was taken somewhat unaware by Harris' quick action and retreated backward across the alley and at least to the center of the street which was estimated to be about sixty feet in width. During this retreat, Albert Gandy pursued Harris and engaged in a fight. Under the testimony, as we understand it, it appeared to be a fist fight with the two Gandy brothers and the prosecuting witness between them until they reached the middle of the street, when both the Gandy brothers began cutting Harris with knives which resulted in the infliction of some serious wounds on Harris, but none on either of the Gandys, and there is no evidence that Harris attempted to use any weapon of any kind whatsoever. According to the State's theory, the appellant called to his brother to cut Harris' head off and again said they should kill him while they had him. This language was embellished with the usual emphasis, the words of which are not essential to a correct understanding of the case. The language is probably the strongest indication of an intent to take the life of Harris of anything in the case.

Appellant presents that the evidence is wholly insufficient to support the conviction. The court gave a charge on self-defense. Our difficulty from the record is in finding evidence sufficient to warrant a charge on self-defense. We think the conviction is amply supported by the evidence.

By questions asked of several witnesses, it is indicated that appellant had an affliction which would require more than the ordinary effort, and might justify more than the ordinary means to defend himself from the attack of Harris. However, no physician testified as to the nature of this affliction. The barber whose cross-examination gives us the most definite description fails to state that the appellant had a hole in his head or that his brain was so exposed as to be easily affected, as indicated by the questions asked by the defendant's counsel. The existence of the wound, its nature, and the result of it, should play an important part in determining the question as to whether or not a charge on self-defense would be proper. The condition of the present record fails to include all the evidence in this regard which might be available. If a plea of self-defense could justify the action of the appellant, it must be because of this affliction or by some other physical fact which does not appear from the record. It will be assumed, however, from all the circumstances that the trial court was justified in giving the charge.

The prosecuting witness testified as to the approach by the Gandy brothers and also as to his immediate action in accepting the challenge presented to him and in making the attack on Bill Gandy. After being asked concerning all of these facts, he was permitted to testify over objection of the appellant as follows: "I hit Bill Gandy when he came up to me, in the manner he did with his hand in his bosom, because I thought he was going to pull a gun on me or something."

This evidence is an explanation of the attack made by the witness on the defendant and it is complained of as a matter in his mind undisclosed to the appellant. Ordinarily, evidence of the undisclosed purpose of a prosecuting witness in approaching and assaulting the accused at the time of the commission of the offense is inadmissible as an attack on the right of the accused to defend himself. This rule is based upon the fact that the accused could not be charged with the motivating cause in the mind of his assailant unless he knew at the time what the cause was.

In the case of Tillman v. State, 51 Tex. Cr.R. 202, 101 S.W. 210, the party prosecuted for murder had received threatening letters from unknown persons demanding that he move from the community. Shortly thereafter he discovered that the house where he was boarding was surrounded by a number of persons who were armed and who demanded that he come out. He did so, but approached shooting, which resulted in the death of one of the parties. The State offered to prove the motive for the parties going to the house. Under the circumstances of that case, it was held that the evidence was inadmissible. It will be noted, however, that the explanation offered was not based on any immediate or recent act of the appellant which was before him at the time of the homicide, or even known to him, explaining or tending to explain the aggressive conduct of the deceased.

Again, in Darnell v. State, 58 Tex.Cr.R. 585, 126 S.W. 1122, the accused relied upon his right of self-defense and proved threats of the prosecutor. Following these threats, evidence was offered by the State to show the undisclosed purpose of the prosecutor in approaching and assaulting the accused at the time the offense was committed. The circumstances of this case are likewise different from those in the one before us in that they do not present a state of facts which would at the very instance of the attack disclose to the accused the reason for the attack.

The instant case is to be contrasted from the foregoing by a state of facts which we think are controlling. Appellant approached with his hand in the bosom of his shirt in a threatening manner. His very language not only invited an immediate attack from Harris with an indication of a preparedness to defend himself, but it may well be construed by a reasonable man as an immediate threat to make an attack himself. The evidence complained of is the conclusion of Harris as to his perilous position in front of Gandy and naturally flows from the things said and done by Gandy. He must have known his conduct put Harris in motion. It is therefore without the rule forbidding the introduction of evidence of undisclosed motives.

By bill of exception No. 6 appellant complains of what he denominates an oral instruction to the jury by the trial judge. Concluding their deliberations, the jury came into the court room with the following verdict:

"We, the jury find the defendant guilty of an assault with intent to murder and assess his punishment at two years confinement in the State Penitentiary.

                                "J. E. Birmingham
                                "Foreman of the Jury."
                

Upon examining the verdict, the court said to them: "Gentlemen of the Jury, the Court, under the law, instructs you to find, in your verdict, whether it is with malice or without malice, if you find him guilty. If you find him guilty, find without malice or with malice."

The statement of the court, in its formality, appears to be a charge to the jury. We find, however, that it is upon a subject embraced in the written charge of the court. He had instructed them as to the law which would require a verdict with malice or a verdict without malice, if they found him guilty. The jury had already returned its verdict. The instruction was nothing more than that the jury should correct their verdict to conform to the written charge which had been given them, which it said was the law of the case. The law requires the presence of the defendant in the court room when the verdict is returned, and there is no complaint of it being done in his absence. It will therefore be presumed that he was present. The record shows no objection at the time and no request that the statement of the court should be in writing. It therefore appears that defendant's counsel viewed the matter at the time as we now view it; that is, a mere instruction to the jury to correct their verdict, which...