Jaynes v. State

• Decision Date: 10 April 1912
• Citation: 150 S.W. 441
• Parties: JAYNES v. STATE.
• Court: Texas Court of Criminal Appeals

150 S.W. 441

JAYNES v. STATE.

Court of Criminal Appeals of Texas.

April 10, 1912.

On Motion for Rehearing, June 26, 1912.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

Lawrence Jaynes was convicted of second-degree murder, and he appeals. Affirmed.

The tenth paragraph of appellant's motion for a new trial complained of the court's charge, because it required the jury to find that defendant was laboring under "sudden passion" at the time of the homicide, on the ground that if the homicide was on the first meeting after the insult had been communicated to him it was not necessary that the passion be sudden.

The twelfth paragraph of the motion complained of the same charge on manslaughter for requiring the jury to believe that the passion was "sudden," and cited the following authorities to support the proposition: Orman v. State, 22 Tex. App. 618, 3 S. W 468, 58 Am. Rep. 662; Stewart v. State, 52 Tex. Cr. R. 283, 106 S. W. 685; Gillespie v. State, 53 Tex. Cr. R. 167, 109 S. W. 158.

The eleventh paragraph of the motion complained of a charge on the ground that it required that the provocation must have occurred at the time of the homicide, and to support the proposition cited the following authorities: Akin v. State, 56 Tex. Cr. R. 325, 326, 327, 119 S. W. 863; Tucker v. State, 50 S. W. 711.

The thirteenth paragraph of the motion complained of a charge on manslaughter, because it did not give a clear, distinct, and affirmative instruction on manslaughter, based on the provocation at the time of the killing, and upon the fresh insult, and cited to support the proposition Richardson v. State, 28 Tex. App. 221, 12 S. W. 870; and also because it failed to distinctly present that feature of manslaughter arising from the fresh insult by requiring the jury to find that accused "honestly believed" in the existence of the previous insult communicated to accused by his wife and daughter, citing Akin v. State, 56 Tex. Cr. R. 328, 119 S. W. 863, and McAnear v. State, 43 Tex. Cr. R. 523, 67 S. W. 117; and also complained that defendant was entitled to a distinct charge on the three theories of manslaughter which, he claimed, were raised by the evidence, citing in support thereof the following authorities: Tucker v. State, 50 S. W. 711; Barbee v. State, 58 Tex. Cr. R. 129, 124 S. W. 967, 968; Akin v. State, 56 Tex. Cr. R. 325, 119 S. W. 863; McAnear v. State, 43 Tex. Cr. R. 523, 67 S. W. 117; Holcomb v. State, 54 Tex. Cr. R. 489, 113 S. W. 755.

Paragraph 14 of the motion complained that the charge undertook to enumerate matters in evidence constituting adequate cause, but erroneously omitted other circumstances under which adequate cause might have been found, and cited in support thereof Gant v. State, 55 Tex. Cr. R. 292, 116 S. W. 801, Wheeler v. State, 54 Tex. Cr. R. 51, 111 S. W. 1022, and Hightower v. State, 53 Tex. Cr. R. 488, 110 S. W. 750; and also complained that the charge was erroneous in instructing that the jury could not consider the question of whether manslaughter existed, unless satisfied from the evidence that the shooting was not in the defense of accused against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, when there was no testimony of unlawful attack, but merely that decedent made a demonstration as though to draw a weapon, citing the following authorities: Phipps v. State, 34 Tex. Cr. R. 564, 31 S. W. 397; Phipps v. State, 34 Tex. Cr. R. 610, 31 S. W. 657; Stewart v. State, 40 Tex. Cr. R. 649, 51 S. W. 907; Seeley v. State, 43 Tex. Cr. R. 68, 63 S. W. 309; Brady v. State, 65 S. W. 521; Poole v. State, 45 Tex. Cr. R. 365, 76 S. W. 565; Harrison v. State, 48 Tex. Cr. R. 45, 85 S. W. 1058; Watson v. State, 50 Tex. Cr. R. 176, 95 S. W. 115; Benson v. State, 51 Tex. Cr. R. 380, 103 S. W. 911; Boddy v. State, 14 Tex. App. 528; Duke v. State, 61 Tex. Cr. R. 19, 133 S. W. 433; Marnoch v. State, 7 Tex. App. 275; Jones v. State, 17 Tex. App. 612; Watson v. State, 50 Tex. Cr. R. 176, 95 S. W. 115; Alexander v. State, 70 S. W. 748; Pharr v. State, 7 Tex. App. 477; Moore v. State, 15 Tex. App. 22; Carter v. State, 37 Tex. Cr. R. 403, 35 S. W. 378; Harris v. State, 37 Tex. Cr. R. 454, 36 S. W. 263; Cooper v. State, 48 Tex. Cr. R. 36, 85 S. W. 1059.

The seventh paragraph of appellant's motion for a new trial complained of the admission of evidence of a certain witness as to the acts and whereabouts of defendant's minor daughter, all of which were out of the presence or hearing of defendant, and not shown to have been within his knowledge at the time of the homicide, because the evidence tended to impair accused's theory that his daughter was in deceased's control, citing in support thereof Young v. State, 59 Tex. Cr. R. 137, 127 S. W. 1059.

Appellant also complained in the sixth paragraph of admission of evidence of another witness as to the whereabouts and acts of accused's daughter while she was missing from home, citing the same authorities as under the next preceding subject.

The fifth paragraph complained of the admission of evidence that during the week that accused's daughter was away from home she was not heard by witness to mention decedent's name, citing in support thereof the authority under the next two preceding subjects.

Paragraphs 15 and 16 of the motion complained of a charge on self-defense in requiring the jury to find that there was actual danger before acquitting on that ground, and the decedent had made, or was making, an attack, when there was no evidence of either, citing the authorities last cited under the fourteenth paragraph.

The court's charge on self-defense was as follows: "A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person; and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time; and in such case the party acting under such real or apparent danger is in no event bound to retreat, in order to avoid the necessity of killing his assailant. If, from the evidence, you believe the defendant killed the said Earl Barron, but further believe that at the time of so doing the deceased had made, or was making, an attack on him which, from the manner or character of it, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed, or the defendant honestly believed he was armed, and was making, or attempting to make, such an attack on defendant, or the weapon the defendant honestly believed he was about to use, if any, and the manner of its use, if any, were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder, or aimed to inflict serious bodily injury upon, the defendant."

The sixteenth paragraph complained of error in the charge on self-defense in requiring the jury to "believe" the truth of defendant's theory, where, if they had a reasonable doubt of its truth, defendant was entitled to acquittal; and also complained of a charge on appearance of danger as an abstract proposition, and that then, in applying the law to the facts, it denied defendant the right to act upon a reasonable apprehension by requiring a finding that decedent had actually attacked, or was attacking, accused, before accused had the right of self-defense, citing in support of such criticisms Phipps v. State, 34 Tex. Cr. R. 564, 31 S. W. 397; Phipps v. State, 34 Tex. Cr. R. 610, 31 S. W. 657; Poole v. State, 45 Tex. Cr. R. 365, 76 S. W. 565; Benson v. State, 51 Tex. Cr. R. 380, 103 S. W. 911; Watson v. State, 50 Tex. Cr. R. 176, 85 S. W. 115; Jones v. State, 17 Tex. App. 602; Bell v. State, 20 Tex. App. 445; Spearman v. State, 23 Tex. App. 224, 4 S. W. 586; Brumley v. State, 21 Tex. App. 222, 17 S. W. 140, 57 Am. Rep. 612.

The charge was also complained of as tending to belittle accused's defense by using the word "honestly" in charging that, if decedent was armed, and that defendant "honestly" believed he was, and was making, or attempting to make, such an attack on defendant with weapon defendant "honestly" believed he was about to use, if any, etc., citing the following authorities: Tillery v. State, 24 Tex. App. 271, 5 S. W. 842, 5 Am. St. Rep. 882; Henderson v. State, 51 Tex. Cr. R. 194, 101 S. W. 245; Bennett v. State, 30 Tex. App. 341, 17 S. W. 545.

The twenty-fifth paragraph of the motion for a new trial complained of the district attorney's statement and argument that the jury "cannot acquit defendant, unless you violate your oaths and commit perjury." "A great many murders have been committed in Harris county, and let it be said that a jury of Harris county has done its duty"—citing Fredrickson v. State, 44 Tex. Cr. R. 288, 70 S. W. 754; The Weatherford Case, 31 Tex. Cr. R. 536, 21 S. W. 251, 37 Am. St. Rep. 828; Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966; McKinley v. State, 52 Tex. Cr. R. 183, 106 S. W. 342; Davis v. State, 54 Tex. Cr. R. 250, 114 S. W. 366.

Appellant's rehearing motions and arguments, relating to the general rule as to the construction of the whole of a statute and the ascertainment of the legislative intent, and relating to the effect of Pen. Code, arts. 702 and 703, relating to the reduction of a homicide to manslaughter by reason of insulting conduct or words, cited Am. & Eng. Enc. of Law, vol. 26, pp. 610, 708, 723; Whaley v. State, 9 Tex. App. 306; Eanes v. State, 10 Tex. App. 444, 446, 450; Niland v. State, 19 Tex. App. 174; Orman v. State, 22 Tex. App. 618, 3 S. W. 468, 58 Am. Rep. 662; Williams v. State, 24 Tex. App. 666, 7 S. W. 333; Norman v. State, 26 Tex. App. 221, 9 S. W. 606; Jones v. State, 33 Tex. Cr....