Griffin v. State

• Decision Date: 20 May 1925
• Docket Number: (No. 9112.)
• Citation: 274 S.W. 611
• Parties: GRIFFIN v. STATE.
• Court: Texas Court of Criminal Appeals

274 S.W. 611

GRIFFIN v. STATE.

(No. 9112.)

Court of Criminal Appeals of Texas.

May 20, 1925.

On Motion for Rehearing, June 26, 1925.

Appeal from District Court, Young County; H. R. Wilson, Judge.

H. S. Griffin was convicted of murder, and he appeals. Reversed and remanded.

Weldon & McDonald, of Wichita Falls, Marshall & King, of Graham, and Taylor & Taylor and Weeks, Morrow, Francis & Hankerson, all of Wichita Falls, for appellant.

Jas. V. Allred, Dist. Atty., of Wichita Falls, D. A. Frank, of Dallas, Bullington, Boone & Humphry and John B. King, all of Wichita Falls, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Defendant is under conviction for murder resulting from the killing of Hugh Riley, Jr. The punishment is confinement in the penitentiary for 25 years.

Defendant (Griffin) and Hugh Riley, Sr., had purchased considerable land together in Archer county. Riley, Sr., had conveyed his interest to his two sons, Hugh Riley, Jr. (deceased), and Ed Riley. A partition had taken place between them and Griffin. In this partition a note for some $30,000 had been executed in favor of Griffin. Suit was instituted on this note. The case was tried and appealed. A controversy relative to the location of a land line had arisen between defendant and deceased. They had gone to Dallas some two weeks prior to the homicide to see the attorney representing deceased, seeking to settle all the controversies between them, including the land line. The attorney was expected in Archer county about June 1st to try to adjust matters. The homicide occurred on May 16th. On the morning of the killing, defendant learned that deceased was having a fence built on land claimed by defendant. About noon he saw deceased in the town of Dundee and protested against building the fence. Deceased stated that he intended to complete the fence, whereupon defendant told him that he (defendant) would be at the place where the fence was being built, and asked deceased when he would be there. There is disagreement in the testimony as to the exact language used by each of them, but there is no dispute that both said they would be there in the afternoon. After dinner defendant went to where two men (employees of deceased) were building the fence, and requested them to stop, telling them there was a dispute about the line. They quit work. Defendant came back across the river, as he explains, to watch and see if the fencers undertook to resume fencing. The state claims his purpose was to lie in wait for deceased.

It is not disputed that defendant had told deceased to stay on his own land. Defendant says that, in view of this request, he expected deceased to approach on a different route from the one he did come. Deceased stopped his car near the corner of his and defendant's land, and went down a fence line not in dispute, and on the inside of deceased's field. Defendant claims that deceased stopped his car because he saw defendant, while the state claims he did so in compliance with his custom. The body of deceased was near the fence, but on his own land, about 600 feet from the point where he stopped his car. Defendant claims that deceased got out of his car with a shotgun and rifle, both of which, together with some cartridges, were found near his body. The state claims he was unarmed at the time of the shooting; that the guns and cartridges were taken out of deceased's car after the shooting by defendant, and "planted" by him near the body for defensive purposes. It is admitted by defendant that he drove his car down the bluff, and drove under the bluff to a point opposite where deceased was shot, where defendant left his car and came up near the top of the bluff. Defendant claims to have done this because he feared deceased would shoot when the latter got out of the car with his two guns. The state claims defendant did this to seek a vantage point in order to shoot deceased from ambush. It was some 260 feet from the point under the bluff where defendant stood when he fired to the body of deceased. He was shot one time with a Winchester rifle. Defendant claims to have told deceased that he (defendant) had stopped the fence builders, and requested deceased to await the coming of his lawyer, but that deceased, instead of agreeing to this, expressed his intention of coming through the fence; that he dropped his shotgun against the fence, and presented his rifle as if to shoot, and did shoot about the same time defendant fired. The point of the killing was a half mile from where the fence was being constructed, and across the river from it. The land in dispute was claimed by defendant, had been in his possession, and used by him for a number of years.

The court charged the jury that, if they found from the evidence beyond a reasonable doubt that defendant, acting with malice aforethought, not in self-defense, or not under circumstances which would reduce the offense to manslaughter, shot and killed deceased, they would find him guilty of murder. Immediately following this instruction appears paragraph 5 of the charge, which is as follows:

"A duel is a combat or fight engaged in by two persons with deadly weapons by agreement or prearrangement. Any person who wounds another in a duel from which such wounded person dies within three months thereafter, is guilty of murder. If you find and believe from the evidence beyond a reasonable doubt that the defendant, H. S. Griffin, and the deceased, Hugh Riley, Jr., engaged in a combat or fight with deadly weapons by agreement or prearrangement, and that in such combat, if any, the defendant wounded the said Hugh Riley, Jr., from which wound the said Hugh Riley, Jr., died within three months thereafter, then you will find the defendant guilty of murder, and assess his punishment at death, or by confinement in the state penitentiary for life, or for any term of years not less than five."

This charge was based upon article 1146 of our Penal Code. We quote here articles 1145 and 1146. They read:

"Any person who shall, within this state, fight a duel with deadly weapons, or send or accept a challenge to fight a duel with deadly weapons, either within the state or out of it, or who shall act as a second, or knowingly aid or assist in any manner those thus offending, shall be deemed guilty of a felony, and, upon conviction, shall be punished by confinement in the penitentiary not less than two nor more than five years."

"If, in any duel hereafter fought in this state, either of the combatants be killed, or receive a wound from which he afterwards dies within three months, the survivor shall be deemed guilty of murder in the first degree and be punished accordingly."

The instruction on dueling was objected to for various reasons, principally (a) because the indictment did not charge dueling, hence the instruction was inapplicable; (b) because the charge did not clearly define the offense of dueling; and (c) because the evidence did not raise such issue. These objections raise legal questions not free from difficulty. One of them, arising in different form, was considered in Johnson v. State, 97 Tex. Cr. R. 658, 263 S. W. 924. While it would be interesting to examine into these matters, we think it not necessary to do so. Regardless of the other points, in our opinion, the one challenging the sufficiency of the evidence to raise the issue must be sustained.

We are not called upon to trace the history of the anti-dueling clauses in the Constitution and statutes of our state, nor the changes which have been made in the law and in the penalties until we find it reflected in its present form in articles 1145 and 1146, supra. It is well understood that the purpose of our Constitution and statutes regarding the matter was to discourage and discountenance the settlement of real or imaginary grievances (usually for reflections, real or apparent, upon one's honor) by resorting to the old code duello. What that was is very clearly set out in Ward v. Commonwealth, a Kentucky case reported in 132 Ky. 636, 116 S. W. 786, 19 Ann. Cas. 71. We quote:

"It is not necessary for the purposes of this case to enter into an elaborate definition of the word `duel.' For our purposes a duel is a combat with deadly weapons, fought according to the terms of a precedent agreement and under certain agreed or prescribed rules. A duel has none of the elements of sudden heat and passion. On the contrary, it is a combat, fought in cold blood, and under rules prescribing the utmost formality and decorum. One of the strongest arguments in favor of the dueling system was the fact that it tended to eliminate sudden and bloody encounters between angry combatants; that the code of necessity gave time for passion to subside and sober reason to return; that it gave opportunity for the intervention of friends, and it was said that this of itself operated to prevent bloodshed. Whether this argument was sound or unsound is immaterial now. We know from the history of the age just gone that the code duello, as practiced by our fathers, was a formal and decorous system, the requirements of which were carried out with the most punctilious formality. There was something highly romantic in the system, and there is no gainsaying that it held a high place in the estimation of the past age. It was to abolish this barbarous practice that the anti-dueling statute and the constitutional provisions were enacted."

See 1 Ruling Case Law, § 377; 3 Wharton's Crim. Law (11th Ed.) §§ 2115 to 2123; 19 Corpus Juris, pp. 825 to 832. That the "duel" had in mind by the framers of our Constitution and members of the Legislature was the combat arranged with some formality, and usually through the medium of friends acting as seconds, is clear from the fact that not only are the principals denounced, but those who act as seconds, or who assist in any manner.

Unless the testimony of Burkett, Morgan, and...