Hall v. State

• Decision Date: 19 February 1902
• Parties: HALL v. STATE.
• Court: Texas Court of Criminal Appeals

66 S.W. 783

HALL v. STATE.

Court of Criminal Appeals of Texas.

February 19, 1902.

Appeal from district court, Collin county; J. E. Dillard, Judge.

Gabe Hall was convicted of assault with intent to murder, and he appeals. Reversed.

Garnett & Smith, J. M. Pearson, R. C. Merritt, and Jones & Eastham, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of seven years. This is the third appeal of this case, the previous appeals being reported in 60 S. W. 769 and 64 S. W. 248.

Appellant, in his fifth assignment of error, complains of the failure of the court to give the following charge: "If the jury find and believe from the evidence that, at the time defendant fired the shot, that the prosecuting witness, Susan Hall, was making a violent attack upon him under circumstances which reasonably indicated her intention to murder him or inflict serious bodily injury upon him, and the weapon used by her, and the manner of its use, were such as was reasonably calculated to produce either of those results, then the law would presume that the said Susan Hall intended to kill him or inflict serious bodily injury upon him; and in such case, if defendant so acted, he would be justifiable." This charge should have been given. Article 676, Pen. Code, provides: "When the homicide takes place to prevent murder, maiming, disfiguring, or castration, if the weapons or means used by the party attempting or committing such murder, maim, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed the person using them designed to inflict the injury." It will be seen from this article that when the homicide is committed to prevent murder, and the weapon or means used by the aggressor was calculated to effect that purpose, the Code makes it an absolute presumption of law that his design was to inflict the injury indicated. This legal presumption is imperative with the jury as well as with the court, and, when applicable, must be given in charge to the jury. Kendall v. State, 8 Tex. App. 569; Jones v. State, 17 Tex. App. 612; Cochran v. State, 28 Tex. App. 422, 13 S. W. 651. The learned trial judge, in presenting appellant's defenses, did so properly, except as to this phase; but, under the circumstances of this case, the statute imperatively requires this charge asked by appellant to be given. The testimony authorizing this charge is substantially as follows: Appellant testified that when he got near the porch Susan Hall came out with a pistol in her hand, and pointed it at him and said, "You dirty son of a bitch! I am going to kill you for telling about that Dallas matter;" that at this time defendant's pistol was in his pocket; that she drew the pistol on him, and he remonstrated, and she said, "You dirty son of a bitch! you shall never see your children again," and leveled her pistol up, and that he threw up one hand, and drew his pistol from his pocket, and shot her in the right side; that when he threw up his left hand he knocked her pistol up, and it fired over his head; that the first shot struck her in the right side; that she again threw the pistol on him, and he grabbed it with his left hand and shot her in the stomach; that when he grabbed the pistol with his left hand the hammer came down on his hand, and made an incised wound between his thumb and index finger on his left hand; that after he shot her the second time he wrenched her pistol from her and walked off; that when he first grabbed it he tried to take it from her, but was unable to do so until she began to weaken from the effects of the second shot. As stated, we think this evidence clearly authorized and required the court to give the charge requested by appellant.

Appellant complains of the eleventh paragraph of the charge of the court, which is as follows: "The jury are instructed, if they believe from the evidence that defendant, Gabe Hall, and Susan Hall were married some time during the year 1887, and that they lived together as husband and wife until the early part of February, 1900, and that about that time they separated and ceased to live together as husband and wife, and that Susan Hall took their five minor children with her and went to reside with her father, Moses Wright, and that defendant, Gabe Hall, went elsewhere to reside, then you are further instructed that defendant, Gabe Hall, at any time had the legal right to enter the premises of Moses Wright, if not forbidden to do so by Moses Wright, in a peaceable manner, for the purpose of visiting his children, or for the purpose of visiting his wife, if invited by her to do so, and in doing so he would not be guilty of any trespass; and if the jury believe from the evidence that defendant, under these circumstances, went upon the premises of Moses Wright upon the invitation of Susan Hall, or for the purpose of seeing his children, with no ulterior object of killing his wife or making an attack upon her of any sort, then his right of self-defense would not be compromised or abridged in any manner by going upon said premises; and if Susan Hall attacked him with a pistol under such circumstances, in such manner as to cause him to believe that she was then and there about to take his life or to inflict upon him serious bodily injury, then defendant would have the right to defend himself against such assault, even to the taking of the life of Susan Hall." Appellant objects to this charge on the ground that the same is erroneous and misleading, and is upon the weight of the evidence, in that the jury are told that defendant had the legal right to enter the premises of Moses Wright, if not forbidden to do so by Moses Wright, in a peaceable manner, for the purpose of visiting his children, or for the purpose of visiting Susan Hall, if invited by her to do so, and in doing this he would not be guilty of any trespass, whereas, under the law, defendant had the right to go upon the premises of Moses Wright at any reasonable time to see his children, whether forbidden by Moses Wright or not, if he allowed and permitted the children of defendant to stay at his house. Furthermore, there was no proof in the case whatever that Moses Wright had ever forbidden defendant to come upon his premises for the purpose of seeing his children, and this charge is without evidence to support it. Again, the testimony of prosecutrix, Susan Hall, shows that she had left word with defendant's mother for him to come down to Moses Wright's and see her; while defendant's mother testified that she had requested her to tell defendant to come down and see her, and that she had so informed defendant. This charge should not have been given in this form. As appellant contends, defendant had the legal right to visit his children. This proposition of law was clearly laid down in the opinions on the former appeals of this case. Appellant had the legal right to go upon the premises to see his children. Still he would have to go in a peaceable manner. The record on this appeal, as on the former appeals, shows that appellant and his wife had separated; the wife taking the children to her father's, Moses Wright. If Moses Wright had forbidden appellant to come upon his premises after permitting the children to remain there, this might be introduced as a circumstance to show that appellant went there for the purpose of provoking a difficulty; but the mere fact that Moses Wright had forbidden appellant to come upon the premises would not, per se, make appellant a trespasser in coming upon said premises. Nor would the fact that his wife had not invited him to come preclude his going upon the premises to see his own children. The court should have charged that defendant had the legal right to go upon the premises in a peaceable manner to see his children, whether forbidden by Moses Wright or invited there by his wife or not. Appellant insists that the evidence does not show that Moses Wright forbade him going upon the premises. We see nothing to authorize this statement, except an inference to be drawn from the evidence, wherein appellant says he carried the pistol to the premises to protect himself from the threatened attack by Moses Wright. We do not think this statement of appellant authorized the court to charge the jury that Wright had forbidden appellant to come upon the premises. If Moses Wright had forbidden appellant to come upon the premises, such fact would not preclude appellant entering the same in a peaceable and lawful...