Howsley v. Gilliam
| Decision Date | 19 December 1973 |
| Docket Number | No. 6352,6352 |
| Citation | 503 S.W.2d 628 |
| Parties | Key Morris HOWSLEY and James A. Howsley, Individually and as Administrator of the Estate of Robert C. Howsley, Deceased, Appellants, v. Harvey GILLIAM, Appellee. |
| Court | Texas Court of Appeals |
Weldon & Smith, Inc., Gerald J. Smith, El Paso, for appellants.
Shafer, Gilliland, Davis, Bunton & McCollum, Perry Davis, Jr., Odessa, for appellee.
This is a suit for wrongful death, brought by the surviving parents and the Estate of Robert C. Howsley, Deceased, who was shot and killed while removing a battery from the Appellee's automobile. The trial Court granted a summary judgment denying recovery and that judgment is affirmed.
The motion for summary judgment alleges that on October 26, 1971, at approximately 11:00 o'clock P.M., Robert C. Howsley was engaged in stealing a battery from the Appellee's car which was parked in front of his residence in Alpine, and that Appellee fired a shot from an upstairs room of his house, and the 22 caliber bullet struck Robert C. Howsley in the head and killed him. The motion further contends that the homicide was justifiable under the provisions of Article 1222, Tex. Penal Code Ann., and therefore there could be no recovery of damages based upon the theory of intentional killing or negligence.
The deposition of Harlan Gilliam, Appellee's minor son, established that on the evening of October 26, 1971, he heard a noise in the front yard and looked out his window and saw someone attempting to open the hood of his father's car. He reported this to his father who at the time was preparing to go to bed. The deposition of the Appellee indicated that on that evening he had started to bed an obtained a book to read when his son reported to him that there was somebody under the hood of the car. He then described what happened, as follows:
'The hood was open. I could see a shadow climbing up in the--sort of almost over the motor, making quite a bit of noise. I told my wife who came upstairs with us to go back and call the police. She went downstairs to all the police and we watched what was going on out in front. It was real dark and the only thing I could see was it was the figure of a person. I could see his dark hat and dark boots or dark shoes. In the darkness, these two even darker things stood out. This person would get up under the hood and hammer around with some tools, get out and go on the far side of the car and disappear from view completely, mumbling and talking which led me to believe there was somebody over there on the other side. I never did see anyone on the other side but this is what I thought, and he came back and got back under the hood again. Did this, like I say, three or four times, hammering, and then getting out and walking around the car. Didn't seem to be trying to be quiet about it at all.
We watched him, my wife came back up and said she had called the police and so I just watched him figured the police would be there in a few minutes. About that time he lifted the battery out and set it down in front of the car. I could tell it was the battery because it came from about where the battery was and it was sort of heavy and I was hearing some grunting and groaning and then he slammed the hood down and I figured he was fixing to take off and so I decided to shoot a warning shot at his feet and tell him to hold up and as I did, evidently he leaned over to pick up the battery at that time and I heard the bullet hit and he fell over.'
Concerning his intent at the time, Dr. Gilliam said:
'Q Did you say anything to him before you fired the shot?
A To the boy outside?
Q Yes, sir.
A No. I didn't.
Q Why not?
A Well, I was afraid he would run away. I thought that if I fired at his feet and then said something that he would know that I had a gun and he would probably stay
there until the police came. If I just yelled, I didn't know whether he had a gun or not and throw a shot my way or not and run off. I wanted the police to get there before he left the scene.
Q Why is that?
A Well, because he was stealing something and I wanted the police to pick him up.'
The Deputy Sheriff who investigated the incident identified pictures taken at the scene which showed the battery on the ground beside the car. In lieu of taking his deposition, the attorneys of record signed a stipulation concerning the testimony of Eugene Stoudt, the college roommate of Robert C. Howsley, and such stipulation provides, as follows:
'IF EUGENE STOUDT were called as a witness in this cause, he would testify that on October 26, 1971, at approximately 11:00 P.M., he and ROBERT C. HOWSLEY intended to steal a battery from the car of DR . HARVEY GILLIAM; that DR. GILLIAM'S car was parked outside of his residence in Alpine, Texas, at such time; that EUGENE STOUDT left ROBERT HOWSLEY in front of DR. GILLIAM'S house; that EUGENE STOUDT went to a gas station to obtain gas in his automobile; and that when he returned to DR. GILLIAM'S residence, he discovered that ROBERT HOWSLEY had been shot.'
Mr. and Mrs. Howsley in their depositions identified Eugene Stoudt as their son's roommate and said he had told them that he and their son were attempting to take a battery from a car in Alpine at the time of the shooting.
Article 1222, Tex. Penal Code Ann., provides that homicide is justifiable when inflicted for the purpose of preventing, among other offenses, theft at night provided it reasonably appears by the acts or by words coupled with acts of the person killed that it was the purpose and intent of such person to commit said offense, and provided the killing must take place while the person killed was in the act of committing the offense and in the case of theft by night the homicide is justifiable at any time while the offender is at the place where the theft is committed, or is within reach of gunshot from such place. Based upon this statute and the proof set forth herein, the trial Court granted a summary judgment for the Appellee.
The Appellants, in four points of error, contend the judgment of the trial Court is erroneous. First, it is contended that the trial Court erred in considering the stipulation as to the testimony of Eugene Stoudt. Appellants urge that the stipulation was not made for the purpose of being used in deciding a motion for summary judgment and that it does not come within the provisions of Rule 166--A(c), Texas Rules of Civil Procedure, which provides that judgment shall be rendered forthwith if the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,' show that there is no genuine issue as to any material fact.
The stipulation was reduced to writing, signed by the attorneys of record and filed with the papers as part of the record. Thus it meets all the requirements of Rule 11, Tex.R.Civ.P. Admittedly, it was made to avoid having to take the witness' deposition and without restriction as to its use during any part of the proceedings in this case. Thus it was entitled to be considered by the Court in the absence of the witness. Southwestern Gas & Electric Co. v. Anderson, 217 S.W.2d 47 (Tex.Civ.App.--Amarillo 1948, no writ)...
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Howsley v. Gilliam
...respondent Dr. Harvey Gilliam's automobile. The trial court granted summary judgment for Gilliam and the court of civil appeals affirmed. 503 S.W.2d 628. We It is undisputed that on October 26, 1971 at approximately 11:00 p.m. Robert Howsley, who was eighteen years of age, was engaged in at......