Gilleland v. State

• Decision Date: 01 January 1875
• Parties: LOWE GILLELAND v. THE STATE.
• Court: Texas Supreme Court

44 Tex. 356

LOWE GILLELAND

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Dallas. Tried below before the Hon. H. Barksdale, holding the Criminal Court of Dallas.

Lowe Gilleland was indicted for the murder of Sam Stevens, and was put upon his trial before Hon. H. Barksdale, who exchanged with the Judge of the Criminal Court of the city of Dallas.

Defendant was convicted, and his punishment fixed at ten years in the penitentiary. The facts appear in the opinion.

Guy, McCoy, and McCoy & Ray, attorneys for appellant, cited Paschal's Dig., arts. 2226, 2228, 2664, 2675, 2676, 3050, 3059; Hudson v. The State, 40 Tex., 18;Johnson v. The State, 27 Tex., 766;Thomas v. The State, 40 Tex., 37;Marshall v. The State, 40 Tex., 202;Isaacs v. The State, 25 Tex., 177;Atkinson v. The State, 20 Tex., 529;White v. The State, 36 Tex., 347; Monroe v. The State, 23 Txe., 220; Thomas v. The State, 40 Tex., 45;Billard v. The State, 30 Tex., 369; Const., art. 1, sec. 8; Hanks v. The State, 21 Tex., 528; Whart. on Cr. Law, 3 ed., sec. 3152; Ramadge v. Ryan, 9 Bing., 333; Troxdale v. The State, 9 Humph., 411;State v. Hopkins, 1 Bay, 372; United States v. Fries, 3 Dallas, 315; 1 Bishop's Cr. Proc., secs. 909, 910, n. 554; People v. Plummer, 9 Cal., 298;People v. Williams, 17 Cal., 142;McGuffin v. The State, 17 Ga., 497;Brennan v. The State, 33 Tex., 268; 1 Bishop's Cr. Proc., n. 555; Laws 2d sess. 14th Legis., 1875, pp. 44, 65; Laws 1873, p. 210.

A. J. Peeler, Assistant Attorney General, for the State, cited 1 Bishop's Cr. Proc., sec. 52; Paschal's Dig., art. 2664; Vaughan v. The State, 21 Tex., 752;Ross v. The State, 29 Tex., 499;O'Connell v. The State, 18 Tex., 344;Johnson v. The State, 27 Tex., 766;Hudson v. The State, 40 Tex., 12;Jones v. The State, 40 Tex., 188;Marshall v. The State, 40 Tex., 200;Billard v. The State, 30 Tex., 372; Paschal's Dig., arts. 1418 and note, 6122; Const., art. 5, sec. 11; Laws of 1875, p. 66; March v. The State, supra, 64.

MOORE, ASSOCIATE JUSTICE.

The objection that the venue of the offense was not proved, as alleged in the indictment, is not well taken. Moffit, one of the witnesses for the State, after testifying that he knew Stevens, whom appellant is charged to have murdered, says “he died in Lancaster, in Dallas county, Texas, of a gun-shot wound in the head. I saw the flash of the pistol, fired by the defendant, that inflicted the wound. Stevens lived some hours--from middle of afternoon. He died some time early in the night.” Though this witness does not state in direct terms that the wound which caused Stevens' death was inflicted in Lancas-caster, Dallas county, yet from the details of the difficulty between the parties, in which the fatal shot was fired, given by him as well as several others, there is no room for a reasonable doubt that the homicide occurred in Lancaster, which was shown to be in Dallas county. But the fact does not depend upon mere inference. It is clearly and positively established by direct testimony. Smith, also a witness for the State, says: “I was sitting in a barber's shop in Lancaster, on west side of public square; defendant passed, and I heard him say something; afterwards I saw deceased riding across the square in advance of the defendant. Saw deceased in a turning position, when defendant fired; thought defendant fired first. Deceased was shot over the left eye.”

Although the deceased may have been in the act of firing upon appellant when he was shot, and would have been guilty of murder had he killed appellant, it does not necessarily follow, as his counsel seem to insist, that the killing of the deceased by appellant must, from this fact, be regarded as an act of self-defense. If so, the survivor in all cases of mutual combat could justify himself upon this ground. The article of the code to which we are cited (568) is not applicable to cases where the killing is upon malice, although the deceased might have been equally in the wrong. It is only when the homicide is inflicted for the purpose of preventing one of the offenses mentioned in this article, and not where the real motive and design is to kill the deceased through malice, that a party is permitted or justified by it in taking the life of another. If the defendant voluntarily engages in a combat, knowing that it will or may result in death, or some serious bodily injury which may probably produce the death either of his adversary or himself, or by his own wrongful act brings about the necessity of taking the life of another to prevent being himself killed, he cannot say that such killing was in his necessary self-defense. But the killing will be imputed to malice, expressed or implied, by reason of the wrongful act which brought it about, or malice from which it was done. (2 Bish. Cr. Proc., 643.) Whether the defendant is actuated by malice, or his own wrong has occasioned the necessity on which he slays his adversary, or he does so to prevent the perpetration by the party slain of one of the offenses named in the code, must depend upon the circumstances of each case, and is always a question of fact to be determined by the jury.

What has been said in response to the argument that appellant was justifiable, because the deceased was in the act of perpetrating the offense of murder, is equally applicable to what is said of his right to protect himself against an unlawful and violent attack. (Code, 570.)

Appellant has no just ground to complain of the charge. It presents a full and elaborate exposition of the law applicable to the case. It may be that it was extended to greater length and went more into detail than was necessary; but we see nothing in it calculated to work prejudice or injury to appellant. It is insisted that it does not properly discriminate in the circumstances which sustain the defense of justifiable homicide under articles 568 and 570 of the code. In support of this objection we are cited to the case of Horback v. The State, 43 Tex., 242. The facts in the two cases are altogether dissimilar; consequently, while the charge, if the same, might in the one require a reversal of the judgment, it would not do so in the other. But admitting that the phraseology of the charge in this particular may be somewhat inaccurate, it could have worked appellant no injury. In the Horback case the defendant relied upon the second of these articles. The court instructed the jury that unless the four propositions laid down in the charge were affirmatively established by the evidence, the defense was not sustained. This article of the code, as we held, did not make one of the propositions laid down by his honor a requisite to defendant's justification. But the facts in this case show that if appellant can claim that the killing was justifiable, evidently he must do so under the first of these articles rather than the second. And as the proposition which was held erroneously in the Horback case is not inappropriate to a charge framed on this article, it cannot be held an error for which the judgment should be reversed. The phraseology of the charge, as we have intimated, may be subject to criticism, but in our opinion it does no injustice to appellant; and does not require any fact to be shown to establish his defense, which, in reference to the law and facts, can be said to have been unnecessary.

To show the killing justifiable under article 568, 1st, it must appear by acts, or by words coupled with the acts of the person killed, that it was the purpose and intent of such person to perpetrate one of the offenses named in this article; 2d, the killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense.

By the instruction the jury were told that, 1st, homicide is permitted for the purpose of preventing an unlawful and violent attack on one's person of such a nature as to produce a reasonable expectation or great fear of death, or great bodily harm about to be inflicted; 2d, the killing must take place while the person killed was in the act of making such unlawful and violent attack. Thus far the charge, though couched in more general language, embodies substantially the same legal propositions contained in the statute. In the remaining part of the paragraph complained of in the objection which we are now considering, the jury are told the killing must occur under such circumstances that the defendant could not save and protect himself from the attack of his assailant by any lawful means except retreating, which, they are told, he was not bound to do; and if he had time and opportunity, with safety to himself, to resort to other means to protect himself, he was not justifiable in killing. Under the facts of this case this part of the charge could have done appellant no injury. It is manifest, though an attack was made by the deceased upon appellant, if such attack was occasioned by his own wrongful acts, that appellant cannot be held, as we have previously said, to have acted in self-defense in resisting it. Obviously the killing was not under circumstances such as appellant could not, without retreating, have resorted to other means for protection than he did....