Littleton v. State

• Decision Date: 08 March 1922
• Docket Number: (No. 6460.)
• Citation: 239 S.W. 202
• Parties: LITTLETON v. STATE.
• Court: Texas Court of Criminal Appeals

239 S.W. 202

LITTLETON v. STATE.

(No. 6460.)

Court of Criminal Appeals of Texas.

March 8, 1922.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

John Littleton was convicted of murder, and he appeals. Affirmed.

See, also, 88 Tex. Cr. R. 614, 228 S. W. 946 D. G. Hunt and J. R. Stubblefield, both of Eastland, for appellant.

B. D. Shropshire, of Fort Worth, Burkett, Anderson & Orr, of Eastland, and R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for murder; punishment fixed at confinement in the penitentiary for a period of 10 years.

The trial was had in the district court for the Ninety-First judicial district in Eastland county. The indictment was returned into the district court for the Eighty-Eighth judicial district of Eastland county.

The record before us shows the order impaneling the grand jury in the Eighty-Eighth judicial district, the return therein of the indictment against the appellant in accord with article 445, Code of Crim. Proc., the entry of its presentation in accord with article 446, Code of Crim. Proc., and an order of the district court for the Eighty-Eighth judicial district transferring the cause to the district court for the Ninety-First judicial district.

The jurisdiction of the latter court is challenged upon the ground that the order transferring the case was one that could not be made in the absence of the appellant. The order was made in accord with the act of the Legislature creating the district court for the Ninety-First judicial district. See Acts 36th Leg. 3d Called Sess., c. 33, § 7. The power of the court to make such a transfer has been approved by this court. Cummings v. State, 37 Tex. Cr. R. 437, 35 S. W. 979. Such a transfer is not a change of venue. Bonding Co. v. State, 73 Tex. Cr. R. 661, 165 S. W. 615. The law requires the presence of the accused at the trial, but does not demand that he be present during proceedings which are merely preliminary to, but which are not a part of, the trial. 12 Cyc. of Law & Proc. p. 526; Pocket v. State, 5 Tex. App. 552; Cordova v. State, 6 Tex. App. 207; Rothschild v. State, 7 Tex. App. 519; Powers v. State, 23 Tex. App. 42, 5 S. W. 153; Oliver v. State, 70 Tex. Cr. R. 140, 159 S. W. 235; Bullock v. State, 73 Tex. Cr. R. 419, 165 S. W. 196.

In the case of Rothschild v. State, supra, the final order changing the venue was made while the appellant was in jail. Dealing with the point raised against the judgment upon that ground, the court said:

"We do not regard the proceedings on an application for a change of venue as any part of the trial, and in support of this position need not invoke any other authority than our own Code of Criminal Procedure, the wisdom and comprehensive character of which stands a fitting monument of the greatness of its original author."

We regard the order in question in the instant case as a matter preliminary to the trial and not a part of the trial requiring the presence of the appellant. In the elaborate brief of appellant we have been referred to no authority which to our mind is in conflict with the correctness of this view.

The deceased was the father of appellant's wife. A separation had taken place, and she was at the home of her father. Appellant came in the evening to the home of the deceased, and sought and obtained an interview with his wife. They conversed with each other in the kitchen for some time. The deceased, his wife, and the witness Sidney Webb were in the living room adjoining the kitchen, the deceased and Webb being engaged in a game of checkers. The deceased, on one occasion during the interview between the appellant and his wife, walked through the kitchen and got a drink of water, and returned to the living room, proceeding with the game. Another daughter of the household, about 13 years of age, also went in the kitchen for the purpose of washing the dishes.

According to the state's theory and testimony, the witness Webb and the deceased were sitting facing each other, with the checkerboard upon their laps; Yancey was sitting with his back to the door between the kitchen and the living room; Webb heard a part of the conversation between the appellant and his wife, in which they discussed some money matters and the division of the property, and the appellant said that he would be satisfied before he left. The appellant approached without any previous warning, save that his wife exclaimed: "Look out, papa!" The door flew open. The appellant appeared near the door with a pistol in his hand, and exclaimed: "Hands up, Cal Yancey!" Yancey whirled around with his hands up, and as he raised himself from the chair the gun was fired. Three shots were fired, two in immediate succession, resulting in the fall of the deceased. After the fall the third shot was fired by the appellant.

Appellant's version is that at the conclusion of his interview with his wife, she told him that he had better "run on"; that she would see him in town. He was preparing to go out the back door when his wife caught him by the arm, and they walked to the door of the living room, which she opened. Appellant saw the deceased sitting with his back to him, and "he jumped up and turned his left side, and when he jumped up he looked awfully angry." Appellant said:

"`Cal Yancey, stop!' and at that time went down and got my gun. Yancey had his right hand down to his side, and I don't know exactly the position of the other. I was so excited I didn't have time to see what he was doing. There were other movements being made in the house. I thought he was trying to get a gun of some kind, or a weapon. The shots were fired just as fast as I could fire them. * * * When I shot him I thought he was going to kill me on account of what my wife had told me. * * * As soon as he jumped and started on me, the way he looked, it just flashed in my mind that he was after me. He did not stop until the third shot was fired, when he fell."

Appellant also testified that the deceased had made threats against his life; that he had been so told by his wife and others.

Against the court's charge, these objections were urged:

"Second. The charge of the court on self-defense is erroneous in that it requires the defendant to believe that he had a right to act in his own self-defense and places a greater burden on the defendant than is placed on defendant by law.

"Third. The charge of the court is on the weight of the evidence, and assumes that the defendant is guilty of some grade of offense."

From the charge on self-defense, we quote the following:

"* * * And I charge you in this connection that, if you believe from the evidence in this case that the defendant, John Littleton, at the time when the deceased, Cal Yancey, arose from his chair and started toward the defendant, if he did so, that the said deceased, Cal Yancey, from his demeanor, action, and appearance, as viewed from the defendant's standpoint at the time, it reasonably appeared to the defendant at the time, viewed from his standpoint, and taking into consideration the surrounding circumstances at the time, and what had happened prior thereto, that he thought his life was in danger, or that serious bodily harm was threatening to his person by the deceased, then you are charged that he would be justified in using all force necessary as viewed from his standpoint at the time to protect himself from the unlawful assault or reasonably apparent unlawful assault, if any, even to the extent of taking the life of the deceased; and, if you believe from the evidence that the defendant at such time did so believe, and you further believe that he thought he was acting in his own right of self-defense, and shot and killed the deceased, you will acquit him, and say by your verdict, `Not guilty.'"

In his brief appellant applies the objections mentioned to the words of the charge which we have italicized. We regard the objections as not sufficiently specific to advise the trial court that the complaint of the charge here made was in the mind of appellant's counsel. Maddox v. State, 76 Tex. Cr. R. 217, 173 S. W. 1026; Lee v. State, 81 Tex. Cr. R. 117, 193 S. W. 313; Young v. State, 78 Tex. Cr. R. 305, 181 S. W. 472; Cockrell v. State, 85 Tex. Cr. R. 332, 211 S. W. 939; Walker v. State, 89 Tex. Cr. R. 84, 229 S. W. 527; James v. State, 86 Tex. Cr. R. 598, 219 S. W. 202. The law requires, as a predicate for complaint of the charge, that the appellant, before it is read to the jury, "shall present his objections thereto in writing, distinctly specifying each ground of objection." Vernon's Ann. Code Cr. Proc. 1916, art. 735. The objections are not specific, but general in their nature. In our judgment, however, the language complained of, when read in connection with the context, was not in any way calculated to injure the rights of the accused or militate against a fair trial. See Code of Crim. Proc. art. 743.

We are referred to no authorities supporting the contention made by the appellant that the use of the word "thought" condemns it. We fail to discern the harmful tendency of the use of the word "thought." Appellant's right of self-defense, if it existed, would have arisen because the acts and conduct of the deceased, as viewed by appellant from his standpoint at the time, raised in his mind a reasonable expectation or fear of death or serious bodily harm. The charge, we think, was not illy adapted to inform the jury of appellant's rights and to fully safeguard them.

In his brief appellant applies the second objection to the charge, which we have quoted, to that phase which advises the jury in substance that, if they foun...