Gunn v. State

• Citation: 252 S.W. 172
• Decision Date: 22 February 1922
• Docket Number: (No. 6459.)
• Parties: GUNN v. STATE.
• Court: Texas Court of Criminal Appeals

252 S.W. 172

GUNN v. STATE.

(No. 6459.)

Court of Criminal Appeals of Texas.

February 22, 1922.

On Motion for Rehearing, May 23, 1923.

Dissenting Opinion May 23, 1923.

On Application for Leave to File Second Motion for Rehearing, June 29, 1923.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Bell County; M. B. Blair, Judge.

J. N. Gunn was convicted of homicide and appeals. Affirmed.

Evetts & White and W. W. Hair, all of Temple, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Bell county of murder, and his punishment fixed at 99 years in the penitentiary.

The facts in this case constitute a tragic history. Appellant, the father of several children, married deceased, who was the mother of six children and there were born to them five more. The children of each prior marriage seemed to have grown up and left the common home, except that some of the younger sons of deceased would occasionally return and cause much feeling in the family. The killing took place at the home of appellant and deceased. No one was present at the time save the husband, his wife, and the youngest son of the wife by her former marriage. This young man, whose name was Hobart Keaton was also killed by appellant at the same time, and apparently in the same transaction.

The theory of the defense was that, if appellant did shoot and kill his wife, the shot was intended for Keaton, and that said shot was fired in self-defense against an unlawful attack by Keaton upon him. Treating the various objections in the order in which they appeared on the trial, we observe a number of bills of exception taken to events occurring in the formation of the jury. In our opinion none of said bills show any arbitrary and unauthorized refusal to sustain any challenge for cause to any particular juror, and the only question raised by any of said bills of exception, calling for discussion on our part, is that complaining of the court's refusal to grant to appellant an additional peremptory challenge, in order that he might exercise same upon the juror Swope. Eleven jurors had already been obtained. Appellant had exhausted the peremptory challenges allowed him by statute. He requested the privilege of exercising such challenge upon the juror Swope, which was denied. This bill of exceptions is very lengthy and sets out in extenso the matters transpiring in the selection of each of the jurors down to, and including, those relating immediately to the selection of Mr. Swope. The apparent purpose is to inform us of the reasons calling for the exercise of the prior challenges allowed by statute as peremptory. We think nothing in the voir dire examination of Juror Swope shows him to be unfair or prejudiced, or in any way disqualified to give to appellant that fair and impartial trial guaranteed by the Constitution and laws. Unless we so believed, those things complained of in this and appellant's other bills of exception relating to the formation of the jury, would be of no moment. It must be shown in some way that in declining to grant him this additional challenge, an objectionable juror was forced upon appellant, else nothing would be shown to us upon which we could base a conclusion of any injury. The matter is complained of in appellant's motion for new trial. To avail him, upon such hearing or on appeal to this court, it must not only be made to appear that the refusal of the trial court to grant such request was erroneous, but also that it was such material error as was calculated to injure the rights of appellant. Article 837, Vernon's C. C. P., subd. 2; Leeper et al. v. State, 29 Tex. App. 72, 14 S. W. 398.

Appellant urges what he thinks to be error in paragraph 8 of the court's charge, same being raised by bills of exception Nos. 7 and 8. Said paragraph is as follows:

"Now, if you believe from the evidence beyond a reasonable doubt, that the defendant, J. N. Gunn, in the county of Bell and state of Texas, on or about the time alleged in the indictment, with a deadly weapon, or instrument reasonably calculated and likely to produce death by the mode and manner of its use, and not in defense of himself against an unlawful attack, real or apparent, reasonably producing a rational fear or expectation of death or serious bodily injury, and not under circumstances reducing same to manslaughter as herein defined, with intent to kill, did unlawfully and with malice aforethought shoot and thereby kill the said Sarah Gunn, as charged in the indictment, you will find him guilty of murder, as charged, and assess his punishment at death, or by confinement in the penitentiary for life, or for any term of years not less than five."

It is insisted that this is too restrictive, in that it fails to tell the jury that the reasonable fear or expectation of death must be determined alone from the standpoint of the accused; and that it limits his right of self-defense to an attack by Mrs. Gunn alone, it being his contention that Hobart Keaton was making the main attack upon him, and that his right of self-defense should have been stated to exist against danger, real or apparent, from an attack by Keaton, or both Keaton and Mrs. Gunn. The rule is uniform that the whole charge must be looked to in determining the correctness of any given portion thereof. Paragraphs 15 and 16 of said charge are as follows:

"Now, if you believe from the evidence beyond a reasonable doubt that the defendant, J. N. Gunn, killed the said Sarah Gunn by shooting her with a pistol, but if you believe from the evidence, or have a reasonable doubt thereof, that, when the said Sarah Gunn was so shot, Hobart Keaton was making, or was about to make, an unlawful attack upon the defendant, which, viewed from his standpoint, and from the manner and character of it, caused him to have a reasonable expectation or fear of death or serious bodily injury, real or apparent, and that, acting under such reasonable expectation, or fear, the defendant shot at the said Hobart Keaton, and, while so shooting, accidentally killed Sarah Gunn without intent to kill the said Sarah Gunn, you will acquit the defendant.

"Or, if you believe from the evidence beyond a reasonable doubt that the defendant, J. N. Gunn, killed Sarah Gunn by shooting her with a pistol, but if you believe from the evidence, or have a reasonable doubt thereof, that, when the said Sarah Gunn was so killed, she was making, or about to make, an unlawful attack upon the defendant, which, viewed from his standpoint and from the manner and character of it, caused him, the defendant, to have a reasonable expectation or fear of death or serious bodily injury, real or apparent, and that, acting under such reasonable expectation or fear, the defendant shot and killed the said Sarah Gunn, you will acquit the defendant."

An examination of these paragraphs discloses that both of the objections of appellant to paragraph 8 are here obviated. The jury are told in each paragraph to view the matter from the standpoint of the appellant, and, if so viewed, it appeared that he was being attacked by either of said parties and if the jury believed the danger from such attack was real or apparent, and that this caused him to commit the homicide, that he must be acquitted.

Appellant asked the court to give the following special instruction:

"Gentlemen of the Jury: You are charged that if, from the evidence, you find that J. N. Gunn was the husband of Sarah Gunn, and was in possession of the house and premises where the homicide occurred, and if you further find, from the evidence, that Hobart Keaton was over 21 years of age at the time of the homicide, then you are instructed that the defendant had the right to request Hobart Keaton to leave his house and premises, and if Hobart Keaton refused to leave defendant's home and premises, after such request, if same was made by defendant then the defendant would have the right, under the law, to use such force as was reasonably necessary to eject him therefrom."

The refusal of this is made the subject of a bill of exceptions. In the main charge we find the following:

"You are charged that, if the defendant forbade Hobart Keaton from entering his, the defendant's home or premises, or forbade the said Hobart Keaton from remaining on the same, or ordered him to leave the same, then the defendant would have the right to use such force as would be necessary to put the said Hobart Keaton off the said premises."

There was no question but that it was shown without dispute that the premises where the killing occurred belonged to appellant, and also that Keaton was over 21 years of age, and in our opinion the giving of said special charge was rendered unnecessary in view of the last-quoted part of the main charge.

We find ourselves unable to assent to appellant's contention that the law of self-defense, as applicable to the facts, was not given to the jury. In addition to paragraphs 15 and 16, supra, the court charged the jury in paragraphs 18 and 19 of the charge as follows:

"So in this case, if you find from the evidence that the deceased, Sarah Gunn, or Hobart Keaton, had made threats against the life of the defendant, or to do serious bodily injury, and that the same came to the ears of the defendant, or he was informed thereof, and that he believed the said threats, if any were made, and if you find from the evidence, or have a reasonable doubt thereof, that at the time of the shooting of Sarah Gunn by the defendant, if he did shoot her, she or Hobart Keaton made any gesture, or act, or both, indicating to the defendant that she and Hobart Keaton, or either of them, were then and there in the act of making an attack upon the defendant, or putting into execution any threats that might have been so made, which, from the manner and character of it, and the defendant's knowledge of the character and disposition of the said Sarah Gunn or ...