Johnson v. State

• Decision Date: 10 November 1886
• Citation: 2 S.W. 609
• Court: Texas Court of Appeals
• Parties: JOHNSON <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>

2 S.W. 609

JOHNSONv.

STATE.¹

Court of Appeals of Texas.

November 10, 1886.

Appeal from district court, Hunt county.

The conviction in this case was in the second degree, for the murder of Griff Flippen, on the second day of June, 1884. A term of five years in the penitentiary was the penalty assessed.

The several witnesses to the shooting concurred substantially in detailing the incidents of that occurrence, as follows: The deceased and one Will Green rode together into the town of Caddo Mills, near which they lived, on the morning of June 2, 1884, which was Monday. They tied their horses at the rack on the north side of the principal street, and started to the drug-store, which was on the same side of the street. Just at that time the defendant was seen in the middle of the street, going in a westerly direction towards his house. He had already crossed the direct line over which deceased and Green would pass going to the drug-store. At a point about 20 feet beyond that line, the defendant stopped; and, when deceased and Green got nearly opposite him, he asked deceased: "What about that difficulty on Saturday?" Deceased replied: "I have done and said all I intend to do and say, and the matter is over so far as I am concerned." The defendant drew his pistol, and deceased exclaimed: "I am unarmed! I did not come here for a difficulty." Defendant replied: "You were fixed Saturday, and I was not; now I am fixed." Green attempted to interfere, but defendant made him step aside, covered deceased with his pistol, and asked: "What do you propose to do about it?" Deceased replied: "Don't shoot. If you are bound to have a difficulty, give me a chance." He (deceased) then pushed the front of his hat back with his left hand, and extended his right hand, having nothing in it. Defendant fired. The deceased ran into and through the drug-store, followed by the defendant, who fired two more shots. Each of the shots took effect, and resulted in the death of the deceased. Deceased was making no demonstrations when either of the shots was fired, and was totally destitute of weapons, except a closed pocket-knife of the ordinary size, which was found in his pocket after death.

One witness for the state testified that, when deceased started to Caddo on the morning of the fatal day, he disclaimed to his mother any intention of engaging in a difficulty with defendant. Deceased's mother testified that, on the night before the tragedy, the deceased told her that he was going to town on the morrow to organize a dance for that night at the house of one Smith. It is to the testimony of this witness that the ruling announced in the fourth head-note of this report refers.

The witness Brumley testified for the state that he, (witness,) defendant, and one Elzey were together in a room at the defendant's house on Sunday evening, the evening before the fatal difficulty. Elzey, in speaking of the difficulty between defendant and the deceased on the preceding day, (Saturday,) said, in the presence and hearing of, if not to, the defendant, that he saw deceased late on Saturday, and that deceased told him that he (deceased) had dropped the quarrel with defendant, and would not renew it. To that statement the defendant replied that he was afraid he was in bad hands. Elzey subsequently, on the stand for the defense, denied that such a conversation occurred, or that deceased ever made the statement detailed by Brumley. Elzey was impeached by three witnesses on this point. This testimony involves the questions treated in the second and third head-notes of this report.

The defense proved that the deceased was in the town of Caddo on the Saturday evening preceding the fatal difficulty on Monday; that he was drinking somewhat; that he applied to one or more parties for a small loan of money with which to buy corn-meal to pay a certain debt, explaining, at the time, that he had endeavored to purchase the meal from the defendant, who was the proprietor of the grist-mills, and that the defendant refused to sell him the meal on credit. It was proved that, in connection with those explanations, the deceased displayed a pocket-knife he had recently sharpened, denounced the defendant as a thief, and said that he was going back to the mill and kill the defendant; that he did go back to the mill, confronted defendant with his drawn knife, cursed and abused defendant, applied the vilest of epithets to him, and concluded his denunciation by calling defendant a d____d thief, who had accumulated his property by a system of robbery upon his neighbors; that, at this juncture, he stepped towards defendant with his drawn knife, when defendant struck at him with an axe, and missed him, at which time some parties interfered, and removed the deceased. It was further proved that on the same evening, and after the difficulty at the mill, the deceased declared that he would kill defendant before Monday night.

The witnesses for the defense, who claimed to have been eye-witnesses to the fatal rencounter, testified that the defendant did not fire his first shot until deceased threw the front of his hat up with his right hand, and thrust his left hand into his pocket.

Terhune & Yoakum, Perkins, Gilbert & Perkins, and Upthegrove & Hefner, for appellant.

Declarations explanatory of an intent cannot be admitted in evidence to affect the rights of a party who had no knowledge of such declarations or intent. 1 Greenl. Ev. §§ 108, 126; Ingles' Case, 1 Tex. App. 307; Powell's Case, 5 Tex. App. 242; Wat. U. S. Crim. Dig. p. 136, § 104; Lanergan v. People, 39 N. Y. 39; Com. v. Harwood, 4 Gray, 41.

Such declarations, were Flippen on trial for the assault, would be self-serving; and when appellant is on trial for killing Flippen, and defends on the ground of threats made and act done showing an intent to execute them, it is not competent for the state to show, by the self-serving declarations of Flippen, his innocent intention, when same was not communicated to Johnson; he, under the law, being authorized to act on appearance of danger. White's Case, 18 Tex. App. 62; Marnoch's Case, 7 Tex. App. 274.

The court erred in that clause as follows: "Implied malice is what the law implies from every voluntary killing of a human being, when the circumstances upon one hand show no express malice, nor upon the other hand any excuse, justification, or mitigation, nor reduce the offense to manslaughter. Every voluntary killing of a human being, without deliberation, from some rash, inconsiderate impulse, without excuse, justification, or mitigation, would be murder in the second degree."

"A voluntary killing, without deliberation, from a rash, inconsiderate impulse, without excuse, justification, or mitigation, may be manslaughter." Let us see if this proposition is correct. A homicide without excuse is where death does not happen from the accident or misfortune of another when in the prosecution of a lawful object by lawful means. Pen. Code, art. 576; 2 Bish. Crim. Law, § 620. A homicide without justification is where the killing is not the killing of a public enemy or a convict, or by an officer in the performance of an official duty, or in defense of the person or property. Pen. Code, 552, 571; 2 Bish. Crim. Law, § 619. Homicide committed under mitigating circumstances is where the circumstances of the killing are not such as would justify or excuse the act, yet they may be properly considered in mitigation of the punishment. 2 Bouv. Law Dict. 247.

Manslaughter is voluntary homicide committed under the influence of sudden passion arising from adequate cause, but neither justified nor excused in law. It is an imperfect defense to murder.

A killing may be voluntary, without deliberation, from some rash, inconsiderate impulse, without excuse, justification, or mitigation, and yet be manslaughter, upon adequate cause. Mile's Case, 18 Tex. App. 168. Adequate cause is any condition or circumstance capable of causing sudden passion, rendering the mind incapable of cool reflection. There need be no pain. Passion is the element of the offense. Wadlington's Case, 19 Tex. App. 274. The adequate cause could exist, the passion exist, and yet the manner in which the killing is done, after the conflict begins, be such that the circumstances would not mitigate the punishment. There is a marked distinction between the charge complained of, and charges approved by this court. In the latter, the language used is: "Every killing, when there are no circumstances which may tend to excuse, justify, or mitigate the act, — that is, reduce the act, — the offense is murder."

The charge should inform the jury what is meant by mitigation, or what are mitigating circumstances, and define manslaughter, in order that they might comprehend the meaning.

WHITE, P. J.

The indictment in this case was for murder of the first degree. A motion was made by the defendant to abate or set it aside, because it was not the voluntary act of the grand jury, in this: that the said grand jury, after investigating the facts, unanimously agreed that the indictment should be for murder of the second degree, and so reported to the district attorney; that the district attorney refused or declined to draw it for that degree, and told them that it could only be drawn for murder of the first degree. It appears that the regular judge of the court had been taken sick the first week of the court, and was confined to his bed at a hotel; a special judge having been elected in his stead to preside. Not being satisfied about their duty in the premises, the foreman of the grand jury went to the hotel to consult with the sick judge about the character of the indictment, and the said judge also told him that an indictment could not be drawn for murder of the second degree, and that it must consequently be drawn for murder in the first degree; and it was under these circumstances so returned, contrary to the wishes and finding of the grand jury....