Maclin v. State

• Decision Date: 21 February 1912
• Citation: 144 S.W. 951
• Parties: MACLIN v. STATE.
• Court: Texas Court of Criminal Appeals

144 S.W. 951

MACLIN v. STATE.

Court of Criminal Appeals of Texas.

February 21, 1912.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wood County; R. W. Simpson, Judge.

A. B. Maclin was convicted of murder in the second degree, and he appeals. Reversed and remanded.

B. B. Hart, W. N. Jones, F. J. McCord, and M. D. Carlock, for appellant. J. H. Beavers and C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

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

There was a considerable amount of evidence introduced showing threats made by the deceased against appellant, both to do him serious bodily injury and to take his life. There is also an abundance of evidence to the effect that deceased was a dangerous man, and one who would execute threats he might make.

1. The court charged the jury in regard to self-defense as follows: "I will now, gentlemen, give you in charge the law of justifiable homicide, and will explain to you the circumstances under which the law permits and justifies the killing of a human being. First, the defendant was justified in such killing if he did so to prevent Quince Everett from killing or maiming him, or to prevent Everett from inflicting serious bodily injury on him, provided it reasonably appeared by the acts of Everett, or by the words coupled with the acts of Everett, that it was the purpose and intent of Everett to kill defendant, or to inflict serious bodily injury on him; and the killing must have taken place while Everett was in the act of killing defendant, or of inflicting such bodily injury on him, or after some act done by Everett showing evidently an intent to kill defendant, or to inflict such injury on him. In the second place, the defendant was justified in such killing if he did the same to protect himself against any other unlawful and violent attack on the part of Everett, besides an attack with intent to kill defendant, or to inflict serious bodily injury on him; but to justify himself in killing Everett to defend himself from an attack by Everett not amounting to an attempt to kill him, or to inflict serious bodily injury on him, the defendant must have resorted to all other means for the prevention of the injury, and the killing must have taken place while Everett was in the very act of making such unlawful and violent attack, but the defendant was not, in any event, bound to retreat to avoid the necessity of killing Everett. In the third place, in order to justify the defendant in killing Quince Everett, it is not essential that there should have been any actual or real danger to the defendant's life or person. If Everett made an unlawful attack on the defendant, or did any act or made any demonstration which produced in defendant's mind a reasonable expectation or fear of death or some serious bodily injury, and if the defendant shot and killed deceased under such reasonable expectation or fear arising from such act or demonstration of Everett, he was justified in so doing, and in law it would make no difference whether the danger to defendant's life was real or imaginary. If it had the appearance to him of being real, he had the same right to act and to the same extent as if the danger was real."

Several objections are urged to this: First, to that portion of the charge in which the court instructed the jury that the defendant would be justified, provided "it reasonably appeared by the acts of Everett, or by words coupled with the acts of Everett, that it was the purpose and intent of Everett to kill the defendant," etc. It is urged that this left it for the jury to determine whether there was danger at the time from the acts and words of Everett, or whether there were any words or acts on the part of Everett at the time of the homicide. It occurs to us that, when this whole section is taken together, there is no substantial merit in this contention.

To the second clause of the charge on self-defense exception was taken wherein the court submitted the issue of resorting to other means as a qualification of his right of self-defense. This criticism is also well assigned. Mr. Branch again in section 449 of his work on Criminal Law admirably states the proposition correctly in this language: "If the attack, if made at all, was made with a deadly weapon, and from the defendant's standpoint produced a reasonable expectation or fear of death or serious bodily injury, it is error to charge on the theory that defendant must have resorted to other means than retreat to avoid the necessity of killing his assailant." Kendall v. State, 8 Tex. App. 582; Ainsworth v. State, 8 Tex. App. 537; Foster v. State, 11 Tex. App. 108; Branch v. State, 15 Tex. App. 103; Gilly v. State, 15 Tex. App. 301; Cartwright v. State, 16 Tex. App. 487, 49 Am. Rep. 826; Morgan v. State, 16 Tex. App 634; Hunnicutt v. State, 20 Tex. App. 643; Williams v. State, 22 Tex. App. 497, 4 S. W. 64; Orman v. State, 22 Tex. App. 604, 3 S. W. 468, 58 Am. Rep. 662; Orman v. State, 24 Tex. App. 502, 6 S. W. 544; Kelly v. State, 27 Tex. App. 566, 11 S. W. 627; Baltrip v. State, 30 Tex. App. 545, 17 S. W. 1106; Risby v. State, 17 Tex. App. 520; Cline v. State, 28 S. W. 684; McCandless v. State, 42 Tex. Cr. R. 60, 57 S. W. 672; Casner v. State, 42 Tex. Cr. R. 124, 57 S. W. 821; Shumate v. State, 38 Tex. Cr. R. 279, 42 S. W. 600; Floyd v. State, 52 Tex. Cr. R. 104, 105 S. W. 791; Crenshaw v. State, 48 Tex. Cr. R. 78, 85 S. W. 1147; Snowberger v. State, 58 Tex. Cr. R. 530, 126 S. W. 885; Anderson v. State, 60 Tex. Cr. R. 314, 131 S. W. 1124. This proposition is also stated tersely by Mr. Branch in his work: "If defendant acts under a reasonable expectation or fear of death or serious bodily injury produced by the acts of his adversary at the time of the homicide, he is not bound to retreat nor to resort to other means of averting such danger, but may slay his adversary if the danger be imminent and pressing, or if it reasonably appears to be to defendant viewed from his standpoint at the time." Foster v. State, 11 Tex. App. 108; Branch v. State, 15 Tex. App. 103; Gilly v. State, 15 Tex. App. 301; Cartwright v. State, 16 Tex. App. 487, 49 Am. Rep. 826; Hunnicutt v. State, 18 Tex. App. 522, 51 Am. Rep. 330; Kelly v. State, 27 Tex. App. 566, 11 S. W. 627; Baltrip v. State, 30 Tex. App. 545, 17 S. W. 1106; Snowberger v. State, 58 Tex. Cr. R. 530, 126 S. W. 885; Hunnicutt v. State, 20 Tex. App. 643; Crenshaw v. State, 48 Tex. Cr. R. 78, 85 S. W. 1147; Orman v. State, 22 Tex. App. 620, 3 S. W. 468, 58 Am. Rep. 662. It is also tersely and correctly stated as follows: "A charge is error which requires defendant to resort to other means before he could kill when the defensive theory is that his life had been threatened and deceased had made hostile demonstrations at the time of the homicide." Crenshaw v. State, 48 Tex. Cr. R. 78, 85 S. W. 1147.

These propositions of law are not debatable, and, where the facts justify or call for such application of these rules, then it would be error on the part of the court to limit the right of self-defense to the view-point of the jury, or require him to resort to other means before exercising his right of perfect self-defense. It is not necessary to go into anything like a detailed statement of the facts of this case in this connection. The evidence shows that the deceased had made numerous threats to do serious bodily injury as well as to take life of appellant. The record also discloses from various witnesses the dangerous character of the deceased and the likelihood of his putting into execution any threat that he might make. There were but two eyewitnesses to the homicide in its entirety. One of these was the deceased, and the other the appellant. The wife of appellant was an eyewitness to a part of the trouble, and corroborates the testimony of the appellant as far as she saw the transaction. The record also shows that the deceased was a son-in-law of appellant, and trouble had grown up between them about some financial and land matters. Appellant had deeded 50 acres of land to deceased and his daughter, wife of deceased, and had done other things towards assisting them somewhat around their little home, which was adjoining that of appellant, divided only by the imaginary line of demarcation, which divides adjoining tracts of land. On the morning of the difficulty appellant began plowing, and, having been sick the day before, he was unable to continue his plowing, and secured the services of a neighboring boy. He went to the house and got his gun to carry with him around his field. Somebody, and he thought it was deceased, had been letting down his fence, and had taken the wire from the gate so that stock could get in upon his crop and destroy it. He took his gun, he says, because of his fear that deceased would execute his threats. He finally reached the gate where the wire had been taken from it, thus leaving it open, and while working at it deceased came upon the scene and began to curse and abuse him, using quite obscene and insulting epithets, such as calling him a damned lying son of a bitch and similar statements. This led to a difficulty in which appellant swore deceased was the aggressor. Deceased had a hoe in his hand, and undertook to use it upon appellant. In their struggle appellant succeeded in getting the hoe, and, when he did, that deceased jerked out his knife and closed with him, and began cutting him. Four stab wounds were inflicted on appellant, one in the left breast between the fifth and sixth ribs, cutting into the cavity and affecting the lower edge of that lung; one was in the left arm, splitting it to the bone; another was in the right arm just under the right shoulder; and another one was under the shoulder blade. It is unnecessary to describe these wounds further than to say the doctor had to take stitches, two or three, to close them. Appella...