Lagrone v. State

• Decision Date: 19 February 1919
• Docket Number: (No. 4815.)
• Citation: 209 S.W. 411
• Parties: LAGRONE v. STATE.
• Court: Texas Court of Criminal Appeals

209 S.W. 411

LAGRONE v. STATE.

(No. 4815.)

Court of Criminal Appeals of Texas.

February 19, 1919.

Appeal from District Court, Upshur County; J. R. Warren, Judge.

D. R. Lagrone was convicted of murder, and appeals. Reversed.

Sanders & Florence, of Gilmer, and Simpson, Lasseter & Gentry, of Tyler, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

This appeal is from a conviction for murder, with punishment fixed at confinement in the penitentiary for five years.

The appellant shot and killed deceased, using a shotgun, and firing two shots. The deceased was the husband of appellant's daughter. There was evidence that he had treated her harshly; that there was bad feeling between the parties, and mutual threats. The deceased was on his wagon, which was empty and had a frame for hauling wood. There was evidence that there was a coat lying near the deceased; and the facts show that appellant, while walking on the public road, met the deceased, and from his testimony the theory arises that the deceased made a demonstration, which was interpreted by the appellant as an effort to get a pistol or gun from the coat, and that from this demonstration and the previous threats of the deceased the issue of self-defense arose. From the state's testimony, developed from the son of the deceased who was an eyewitness, there was no demonstration by the deceased, and between the firing of the first and second shots deceased asked appellant not to shoot again, as he might recover from the injury already received.

The issues of murder, manslaughter, self-defense, and the law of communicated threats were submitted in a charge to which the appellant has addressed several criticisms. The definition of "malice aforethought" was one that has been approved on previous occasions. Davis v. State, 204 S. W. 652; Tooney v State, 5 Tex. App. 163; Gallaher v. State, 28 Tex. App. 266, 12 S. W. 1087.

The law of self-defense as embodied in the court's charge, we think, is subject to no just criticism addressed to it by the appellant. It submitted without qualification the law of self-defense upon apparent danger, and the law of self-defense arising out of a demonstration manifesting an intention to execute a threat previously communicated to appellant. In addition to this, the court, at the request of appellant, instructed the jury that, if appellant feared an attack from the deceased, he had a right to arm himself, and that the possession of a shotgun at the time of the homicide was no violation of law, and would not authorize a conviction; and also instructed that, in determining whether the defendant acted in self-defense, it would be the duty of the jury to view the facts and circumstances from his standpoint as it reasonably appeared to him at the time, and in so doing they might consider the defendant's knowledge of the character of the deceased and threats made by him against the appellant of which he had information, and the previous acts and conduct of deceased.

One of the special charges requested and refused would have advised the jury that if the first shot was fired in self-defense and not sufficient time had elapsed between the first and second shot for the defendant to determine that the danger to his life had ceased, or if they had a reasonable doubt thereof, to acquit. It occurs to us that, if the appellant had requested the court to instruct the jury on the law authorizing him to continue to shoot until the danger ceased as viewed from his standpoint, it would have been proper for the court to give such charge. The one quoted, however, does not appear to be in substance such a charge, but instructs an acquittal if there was not sufficient time elapsed within which to determine that the danger had ceased, thereby basing the right to continue to shoot, not upon whether the appellant at the time that he fired the second shot was acting under the apprehension of danger, but upon whether there had been a sufficient lapse of time for him to determine the contrary, whether in fact he had determined the contrary or not. From the state's evidence it appeared that there was an interval between the two shots, in which interval the deceased requested appellant not to shoot any more, stating that he might recover from the wound already received. From this statement, whatever time had elapsed, the jury might have determined that the danger had ceased, and appellant had notice thereof, and we think the court was justified in refusing to give the requested charge, ignoring this phase.

Appellant excepted to the charge on the law of manslaughter because of its failure to inform the jury of the law that would govern in the event they found the first shot fired by appellant was justifiable and the second shot was not. Presenting the same view more in detail, the appellant presented a special charge, to the refusal of which exception was duly reserved.

The main charge on manslaughter is as follows:

"Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty in determining the adequacy of the provocation, if any, to consider in connection therewith all the facts and circumstances in evidence in the case transpiring before the homicide; and if you find that, by reason thereof, the defendant's mind, at the time of the killing, was incapable of cool reflection, and that such facts, if any, and circumstances, if any, were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation, if any, satisfies the requirements of the law; and, so, in this case, you will consider the threats, if any, of the deceased, and the former conduct, if any, of the deceased toward the defendant, and all the other facts and circumstances in evidence transpiring before the homicide in determining the condition of the defendant's mind at the time of the killing, and the adequacy of the cause, if any, producing such condition."

The law applicable to a state of facts such as arises out of the state's testimony touching the incidents of the homicide is illustrated by the quotation from the opinion of Judge Willson in Hobbs v. State, 16 Tex. App. 522, as follows:

"Again, the learned judge instructed the jury that the defendant's right of self-defense ceased when the danger, real or apparent, had ceased. This was correct. But suppose, in defending himself against a violent attack, or a supposed violent attack, he became excited by passion to such an extent as to render his mind incapable of cool reflection, and under this state of excitement he carried his right of self-defense too far, used more force than was necessary to his protection, fired one or more shots after all real or apparent danger had ceased, but before his mind had had time to cool, and from wounds thus inflicted death had resulted, would this have been murder? We think not. Suppose the first shot fired by the defendant was justifiable, but that the two shots fired by him which struck Whiteley were fired after the danger, real or apparent, which threatened the defendant had ceased, but that he fired the said shots under the immediate influence of sudden passion, arising from the supposed deadly conflict in which an instant before he had been engaged, and fired them before he had had reasonable `cooling time,' reasonable time to realize that he was no longer in any danger, would not this state of facts, if the shots had killed Whiteley, constitute manslaughter and not murder? We think a homicide under these circumstances would not be of a higher grade than manslaughter."

If appellant fired the first shot in self-defense, and fired the second one after the danger had ceased, as viewed from his standpoint his offense might not have been higher than manslaughter, if the jury believed that the second shot, though wrongfully fired, was fired under the influence of a sudden passion aroused by an adequate cause. The appellant having sought by objection to the failure to embody this phase of the law in the main charge, and by requesting a special charge embracing it, we are of opinion that the court was in error in failing to either amend his main charge, or give the special charge requested. Judge Ramsey,...