Johnson v. State, 18411.

• Decision Date: 17 June 1936
• Docket Number: No. 18411.,18411.
• Citation: 95 S.W.2d 968
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

95 S.W.2d 968

JOHNSON v. STATE.

No. 18411.

Court of Criminal Appeals of Texas.

June 17, 1936.

Commissioners' Decision.

Appeal from District Court, Bosque County; O. B. McPherson, Judge.

J. D. Johnson was convicted of murder with malice aforethought, and he appeals.

Reversed and remanded.

H. J. Cureton, W. E. Cureton, and H. J. Cureton, Jr., all of Meridian, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was convicted of the offense of murder with malice aforethought, and his punishment was assessed at confinement in the state penitentiary for a term of 10 years.

The testimony, briefly stated, shows that appellant at the time of the alleged offense was conducting a beer saloon and sandwich shop near the Brazos river in Bosque county; that on the afternoon, about three or four hours before the commission of the alleged homicide, two Mexicans, one a large man and the other small, came into appellant's place of business and during said time each drank about four or five bottles of beer. A short time before dark, Mr. Dunlap, who was associated with appellant in the business, saw that the Mexicans made themselves obnoxious to other patrons, and he asked them to leave, which they failed to do. He then sent for the constable, who arrived after dark. Appellant informed the constable that the Mexicans were drunk, that they had invited some of the patrons of his business to drink beer out of the same glass of which they had already consumed a part, and that they talked rather loud. Appellant requested the constable to remove them from the building, but he hesitated to undertake the job by himself, and called upon appellant to assist him in arresting them, which request was complied with. The constable accosted the large man and appellant the small one, and told them to consider themselves under arrest. Appellant with the small man went out first, and soon thereafter two shots were fired. The constable had some difficulty in controlling the large Mexican, and appellant went to his assistance, knocked the Mexican down, and assisted the constable in handcuffing him. After having subdued him, they, the appellant and the constable, went to look for the smaller one. They found him about 150 yards from the saloon, with a bullet wound through his body. The sheriff was notified, who upon his arrival viewed the body, and on his way from the body of the deceased to the beer saloon and about 25 steps from it, he found a knife approximately 10 inches in length.

Appellant pleaded self-defense, in that deceased was attacking him with a large knife at the time he shot him. He also filed a plea for a suspension of sentence in the event of his conviction. To rebut appellant's theory of self-defense, the state proved that the bullet entered in the back of the deceased just under the shoulder blade, and made its exit near the right nipple.

By bill of exception No. 1 appellant complains because the court, after instructing the jury on the legal right of a peace officer to arrest without a warrant under certain circumstances, and to use such force as was necessary to effect the arrest and to prevent an escape, etc., further instructed them as follows: "But on the other hand defendant would not be justified in killing the deceased in order to effect his arrest or prevent his escape unless the deceased's conduct at the time and under the circumstances viewed from the defendant's standpoint there was created in the mind of the defendant a reasonable fear for his life or serious bodily injury," etc. Appellant's objection to the quoted part of the charge was that it was a repetition and gave undue emphasis to the state's theory, the effect of which was to cast a doubt on defendant's theory of self-defense inasmuch as the court in submitting the state's theory had already in substance given such an instruction. An examination of the court's charge fails to disclose that the court had given any instruction on the extent of an officer's legal right to make an arrest or prevent an escape, and, therefore, that part of the charge complained of was proper and a necessary guide to the jury, whose duty it was to determine whether he, appellant, while acting as a peace officer, remained within or exceeded the limits prescribed by law.

Bill of exception No. 2 reflects the following occurrence: The state placed Polo Cantu upon the witness stand and propounded to him the following question and elicited the following answer: "Was he a good Mexican? A. A good boy." The appellant objected on the ground that the character of the deceased had not been put in issue by the defendant, and no threats had been proven. The court sustained the objection.

Bill of exception No. 3 reflects the following occurrence: The state introduced one John King as a witness, and elicited from him that the...