Koons v. Rook

• Decision Date: 04 June 1927
• Docket Number: (No. 788-4786.)
• Citation: 295 S.W. 592
• Parties: KOONS v. ROOK et al.
• Court: Texas Supreme Court

295 S.W. 592

KOONS v. ROOK et al.

(No. 788-4786.)

Commission of Appeals of Texas, Section B.

June 4, 1927.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Consolidated actions by J. J. Rook, and by Cecil Rook, Majel Emler, and Mattie Emler, respectively, by their next friends, against J. P. Koons. The Court of Civil Appeals reversed a judgment for the defendant and remanded the case for a new trial (289 S. W. 1077), and the plaintiffs and the defendant bring error. Judgment of the Court of Civil Appeals affirmed, and cause remanded.

Marion Reynolds and H. B. Hill, both of Shamrock, R. H. Cocke, of Wellington, and B. Y. Cummings, of Wichita Falls, for plaintiff in error.

E. T. Scott, of Wheeler, and J. W. Sanders, of Canadian, for defendants in error.

SHORT, J.

Writs of error have been granted to both parties, the original plaintiffs and the original defendant. It will therefore be more convenient to so designate them in this opinion. The judges of the Court of Civil Appeals at Amarillo wrote three opinions on the case, two of which were published. 289 S. W. 1077. In these opinions a full statement of the pleadings and the testimony is given. The lawsuit grows out of a transaction resulting in serious bodily injuries having been inflicted upon the plaintiffs by defendant; the latter having fired an automatic shotgun loaded with bird shot into an automobile occupied by some boys and girls riding up and down the highway in front of his house about the hour of midnight, singing, playing a French harp, and perhaps making other noises. One of the plaintiffs lost his eyesight in both eyes. Two of the others lost their eyesight in one of them. Other injuries were inflicted. The injured parties were children of some neighbors of the defendant with whom he was on friendly terms. The defendant excuses his conduct in firing into the automobile by alleging that he was, and had been for a number of months, in fear of sustaining death or serious bodily injury from some other parties in the neighborhood, whose enmity he had incurred, and who had threatened his life, and by whom he had been beaten on divers and sundry occasions, and that the conduct of the plaintiffs was such as to lead him to believe that these threats were about to be carried into execution by these other parties.

The first paragraph of the plaintiffs' petition briefly states from their standpoint the conduct of the defendant upon which they base their cause of action, as follows:

"That on or about the 9th day of September, 1925, plaintiffs Cecil Rook, Majel Emler, and Mattie Emler were in an automobile driving past the residence of defendant in Wheeler county, Tex., and were driving along the public highway in front of defendant's residence in said automobile, when defendant unlawfully and without justification fired upon said plaintiffs with a shotgun loaded with shot, at close range, and with said gun unlawfully shot plaintiffs five or six times, severely, painfully, grievously, and permanently wounding said plaintiffs, and inflicting painful and permanent injuries upon plaintiffs."

The injuries were thereafter fully described, and the damages were alleged to be approximately $107,000.

There was a trial before a jury and judgment was rendered in favor of defendant. Upon an appeal to the Court of Civil Appeals, the judgment was reversed on account of the misconduct of the jury. All the judges of the Court of Civil Appeals agreed upon this point, but there was a dissenting opinion written by Justice Randolph, based upon the alleged error of the court in instructing the jury with reference to the right of the defendant to act on apparent danger to himself and in defense of his family; the majority opinion holding that these instructions were correct. The plaintiffs' application was granted as a matter of course on account of the granting of the defendant's application.

By omitting the phrase from the paragraph quoted, "unlawfully and without justification," and also the word "unlawfully" following that phrase, the allegations of fact in the paragraph are confessedly true according to the testimony of both parties. The darkness of the night prevented the defendant from recognizing the occupants of the automobile at the time he inflicted the injuries. While the allegations of the plaintiffs present the theory of a willful and wanton as well as an intentional act on the part of the defendant, yet the testimony from their standpoint tends to show the act to have been one of negligence. Upon the other hand, while the allegations of the defendant theoretically present the defense of self-defense and of the defense of his family against an apparent danger imminent to himself and members of his family, yet his testimony tends to show that he acted without negligence, under a mistaken idea as to the identity of the parties in the automobile. The case was tried both in the lower court and disposed of in the Court of Civil Appeals under the respective theories presented by the pleadings.

Justice Randolph, who wrote the first opinion for the Court of Civil Appeals reversing the case on account of the misconduct of the jury, concluded that the trial court erred in giving the following charge at the request of the defendant to the jury:

"If you believe from the evidence that on the night that plaintiffs were shot, the defendant had become alarmed by reason of the acts, conduct, or words of the plaintiffs, or either of them, and that he believed himself or his family in danger, then he had the right to arm himself with a shotgun and go out of his house into the yard for the purpose of protecting himself and his family from any danger that he may have reasonably believed to have existed at the time."

Justice Jackson who seems to have written an original dissenting opinion, wrote another in which he disagreed with his associate in part, holding that the instructions of the trial court to the jury as to the rights of the defendant were correct. In this second dissenting opinion, Chief Justice Hall concurred.

The plaintiffs objected to the charge of the court presenting the rights of the defendant in error, not only as to the use of the word "or" in the above-quoted charge, but also in permitting the jury to take into consideration the rights of the defendant to protect his family from the apparent threatened danger. The plaintiffs also objected to the charge of the court in placing the burden of proof upon them to show by a preponderance of the evidence the nonexistence, from the standpoint of defendant, of any right to protect himself or his family from this apparent threatened danger, asserting that this defense of the defendant was in the nature of a plea of confession and avoidance, and that the burden of proof rested upon him to establish it by a preponderance of the evidence. It will be seen from a reading of the opinions of the Court of Civil Appeals in this case that the judges thereof concluded that the defendant's right must be measured by the rules applicable to a criminal case. According to these rules, as defined in articles 1221 and 1222 of the Revised Penal Code of 1925, homicide, to be justifiable, must have been committed when it reasonably appeared by the acts or by words coupled with the acts of the person killed that it was the purpose and intent of such person to commit certain offenses named in the article, and that the killing must take place when the person killed was in the act of committing such offense or after some act done by him showing evidently an intent to commit such offense. The testimony in this case shows that at the time the defendant fired the shot he was not in position to determine the identity of the parties or to see what they were doing at the very moment he fired the shots. Again, article 1258 of the Penal Code 1925 provides as follows:

"Where a defendant accused of murder seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the killing unless it be shown that at the time of the homicide the person killed by some act then done manifested an intention to execute the threat so made."

The plaintiffs contend that under the testimony in this case the defendant was not entitled to invoke these articles of the Penal Code, because the testimony showed his claim to protection was based upon hearing the uttering of certain words apparently emanating from some one in the automobile, reasonably indicating that the persons in the automobile were about to execute a threat to take his life, but that such words were not accompanied by any act showing evidently an intent to commit such offense.

After instructing the jury that the burden of proof was upon the plaintiffs to establish the material allegations of their pleadings by a preponderance of the evidence, and after defining the word "assault" as being any unlawful violence used by one person upon the person of another with the intention of injury, the trial court then instructed the jury as follows:

"Bearing in mind the foregoing instructions, if you find and believe from the evidence in this case by a preponderance thereof that the defendant J. C. Koons on the 9th day of September, 1925, not in defense of himself or any member or members of his family, assaulted the plaintiffs Cecil Rook, Mattie Emler and Majel Emler by firing upon them with a gun, and that by reason of such assault, if any, the plaintiffs have sustained damage thereby, then I charge you that your verdict should be for the plaintiffs for damages, the measure of which you will find in the succeeding paragraph of this charge, unless you should find for the defendant on other charges hereinafter given."

The plaintiffs objected to...