Kirklin v. State

• Decision Date: 18 March 1914
• Citation: 164 S.W. 1016
• Parties: KIRKLIN v. STATE.
• Court: Texas Court of Criminal Appeals

164 S.W. 1016

KIRKLIN v. STATE.

Court of Criminal Appeals of Texas.

March 18, 1914.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Frank Kirklin was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of murder in the second degree; his punishment being assessed at 10 years' confinement in the penitentiary.

He objected to the introduction of the date of the marriage license which the clerk issued authorizing the marriage of the deceased and the divorced wife of appellant. This license was dated 12th of February. The witness Mason testified to uncommunicated threats made by deceased in regard to appellant, which threats, he says, occurred two or three days prior to the homicide. The homicide occurred on the 13th of February, and license was issued on the 12th of February. Appellant was unaware of the issuance of the license at the time of the homicide. It therefore could not be introduced against him on the question of motive. If it was introducible at all, it was introducible for the purpose of attacking the credibility of the witness Mason. The witness Mason testified that deceased, when he made the threats with reference to appellant, stated that he (Slayton) then had in his pocket a marriage license to marry the widow of appellant. The court limited this testimony to the credibility of Mason. For that purpose we are of opinion it was introducible. Mason had testified to the statement of deceased that he had a marriage license to marry the widow of appellant, some days prior to the issuance of the license. This would tend to impress the jury that Mason may have fabricated this testimony with reference to threats and the statement of the deceased. We are of opinion, for that purpose, that the date of the marriage license was introducible, and the court was correct in so limiting the testimony, and in fact would have been in error had he refused to do so. It could not be used against defendant, because it would be supplying a motive for the killing of the deceased, which could not be imputed because appellant was not aware of the issuance of the license. The testimony also shows, in this connection, that appellant was engaged to remarry his divorced wife at the time of the killing, and that there was also an engagement between her and Slayton to marry. Appellant was aware of the fact that there was a contemplated marriage between deceased (Slayton) and his wife, for he had been so informed by his divorced wife's mother; but he was not aware of the fact that the license had been issued.

There are quite a lot of exceptions to the court's charge on manslaughter. These, we think, are not of sufficient importance to require a reversal of the judgment. Upon another trial, however, if the court undertakes to enumerate the circumstances that would conduce to show adequate cause and consequent passion, he should enumerate all the circumstances. While it may not be necessary to single out and collate these circumstances, yet, where the court undertakes to do so, none of them must be omitted. The charge in this respect is subject to criticism, for the court informed the jury in this respect they could look to the previous acts and conduct of the deceased and the demeanor at the time of the homicide, and other circumstances, "such as communicated threats." Uncommunicated threats were in the case also. While uncommunicated threats would not be admissible to show the condition of defendant's mind, so far as manslaughter is concerned, yet it might have the effect of inducing the jury to believe deceased was moving towards defendant at the time of the shooting for the purpose of inflicting personal injury upon him, or to execute his threats. It will be sufficient, usually, to charge, in a general way, that the jury should look to all the facts and circumstances occurring before and at the time that were explanatory of the condition of defendant's mind, or tend to throw light upon its condition at the time of the killing.

The charge of the court is sharply criticised with reference to self-defense. In the charge, among other things, the court authorizes the shooting from the standpoint of apparent danger, and, without quoting the full charge in this connection, he closes the paragraph by stating: "In this connection, you are instructed that one who is unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant, but has the right to stand his ground, and even...