Lynch v. State

• Decision Date: 23 November 1887
• Citation: 6 S.W. 190
• Parties: LYNCH v. STATE.
• Court: Texas Court of Appeals

6 S.W. 190

LYNCH v. STATE.

Court of Appeals of Texas.

November 23, 1887.

Appeal from district court, Fannin county; D. H. SCOTT, Judge.

Green Lynch, defendant, was convicted of murder in the second degree for killing A. J. Guess, and sentenced to the penitentiary for seven years. Defendant appealed.

WHITE, P. J.

The appeal is from a judgment of conviction for murder of the second degree for the killing of one A. J. Guess, whose wife was a niece of appellant. There are several bills of exceptions, as well as assignments of error, presented in the record, which attack the rulings of the court upon questions of evidence, and certain portions of the charge given the jury, as also the refusal to give certain requested instructions asked for defendant. We propose to notice only such matters complained of as are considered of moment on this appeal.

1. Defendant complains that the court erred in refusing to permit him to prove his own statements and declarations with regard to the homicide, made within 15 or 20 minutes after the killing, and after he had gone in a wagon some 1,200 yards from the place of the killing. This identical question occurred in Stephens' Case, 20 Tex. App. 255, and it was then held that "declarations of a defendant concerning a crime charged against him, made ten or fifteen minutes after the commission of the same, and after he had gone a distance of four or five hundred yards from the place of the homicide, cannot be treated as res gestæ, and are therefore not admissible in his behalf." "Declarations or acts of a defendant in his own behalf, unless part of the res gestæ, or of a confession offered by the prosecution, are not admissible for the defense." Walker v. State, 13 Tex. App. 619.

2. For the purpose of showing that the meeting with deceased was unpremeditated and accidental, defendant proposed to prove that, on the Saturday before the Monday when the killing occurred, he had told the proposed witness Rogers that he would be at the post-office at Elwood on Monday evening to get his mail. This evidence was claimed to be admissible, in connection with other evidence which he had introduced showing that he was on his way to Elwood at the time the difficulty occurred, and tended, also, to establish that fact. Whatever may have been the theory of the state at the beginning of the trial with regard to this matter, we are of opinion that the evidence upon that point is positive and uncontradicted to the effect that defendant had started to and was on his way to the Elwood post-office; that he was going for his mail; that he was traveling the accustomed and most direct route; and there is no testimony that he had any purpose to seek and bring on a difficulty with deceased. True, he had a double-barrelled gun with him; but this he had a right to carry, and, if he was carrying it on account of threats deceased had made against his life, this did not lessen, but only emphasized, the right. He did not go out of his road or way to meet deceased. On the contrary, when he found that deceased had unhitched his horse from the plow, and was rapidly following the wagon in which he was riding, he urges the driver to go faster, to "get out of the way;" and they do get to the gate, close it, and are outside the field when the deceased overtakes them. Now if, under these circumstances, it was still an open question as to whether he was going to the post-office or not, then the excluded evidence was perhaps material and admissible as an additional fact going to prove it. If it was not an open or disputed question, the evidence was immaterial. In our opinion, enough has been shown to establish its immaterially, and, if this had been the view of the learned trial judge, his ruling would have been correct. Such, however, does not appear to have been the case, because we find in the fifteenth paragraph of his charge, which is made a special ground for exception by defendant, that the jury are instructed that "the defendant had the right to go to the post-office, or any other place he desired to go, for a lawful purpose; but if he started to or by the house of the deceased merely to get an excuse to kill him, or with the intention of seeking or getting into a fatal rencounter with deceased, and thus get into the difficulty, then the defendant cannot justify the homicide, even though his life was put in peril."

With the testimony as disclosed in the record before us, there is no doubt as to his purpose and intention, or that it was a lawful one. He was, as all the witnesses who testify on that point say, going to the post-office. If this be so, then this instruction, in so far as it questioned his purpose and intention, was not warranted by the evidence, and was calculated to prejudice him with the jury, by impressing them with the idea that, in the opinion of the court, there was serious doubt upon the subject. To our minds, one of two things must be apparent: Either the evidence excluded was material, and should have been admitted, if this instruction was warranted; or the instruction itself was unwarranted, because there was no disputable matter upon which to predicate it. In either aspect of the case, the error is both important and serious. With the light before us we would say the ruling upon the evidence was correct, and the instruction erroneous. "However correct a principle of law may be in the abstract, it is error to give it in charge when there is a total want of evidence to support the phase of the case to which it is applied." Conn v. State, 11 Tex. App. 390. "If the court assumes and charges upon a theory not raised or indicated by the evidence, it is radical error and fatal to the conviction." Ross v. State, 10 Tex. App. 455; Taylor v. State, 13 Tex. App. 184; Hardin v. State, Id. 192; Stewart v. State, 15 Tex. App. 598. "A charge should be confined to the facts in evidence." Boddy v. State, 14 Tex. App. 528; Mayfield's Case, 23 Tex. App. 645, 5 S. W. Rep. 161.

3. A most vigorous attack is made in the brief of counsel for defendant upon that portion of the charge of the court relative to threats made by deceased against defendant. It is insisted that while, in the twelfth paragraph, the court correctly announced the law as declared in article 608, Pen. Code, that it was error, in paragraphs 13 and 14, to interpolate the word "immediate," and thereby qualify the word "intention" as used in the statute. It is declared by the statute that threats afford no justification for homicide, "unless it be shown that, at the time of the homicide, the person killed, by some act then done, manifested an intention to...