McCandless v. State

• Citation: 57 S.W. 672
• Parties: McCANDLESS v. STATE.
• Decision Date: 31 May 1900
• Court: Texas Court of Criminal Appeals

57 S.W. 672

McCANDLESS v. STATE.

Court of Criminal Appeals of Texas.

May 31, 1900.

Appeal from district court, Coryell county; J. S. Straughan, Judge.

Charley McCandless was convicted of murder in the second degree, and appeals. Reversed.

McDowell, Sadler & Arnold, for appellant. S. B. Hawkins and Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for 17½ years, and he prosecutes this appeal.

With reference to appellant's application for continuance, it being his second application, we do not believe the court erred in overruling the same.

Appellant reserved certain bills of exception to the action of the court admitting testimony to the effect that deceased was not in the habit of carrying a pistol, and also that deceased was not in the habit of swearing and using oaths. The court explains that, while this testimony was admitted, it was subsequently excluded, and the jury instructed to disregard it. We note, in the charge of the court, that the jury were instructed to disregard the testimony concerning the pistol; but we do not find that any instruction was given excluding the testimony with regard to defendant not using oaths, or that the witnesses had never heard him use an oath. The court, however, may have withdrawn this testimony orally, and have orally instructed the jury to disregard the same. Said testimony was not admissible, and was a character of evidence touching upon material issues, to wit, appellant relied upon self-defense, and introduced testimony tending to show that deceased, at the time appellant shot him, was making a move as if to draw a pistol; and appellant also introduced testimony showing that at the time of the difficulty in which the killing occurred, deceased cursed him. Now, the admission of this character of testimony was calculated to disparage appellant's testimony upon this issue before the jury, either to discredit or weaken it. There are cases in which the withdrawal of testimony which has been introduced against a defendant may cure the error. Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925; Sutton v. State, 2 Tex. App. 342; Nalley v. State, 28 Tex. App. 387, 13 S. W. 670; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Jones v. State, 33 Tex. Cr. R. 7, 23 S. W. 793. But the admission of evidence which is of a material character, and calculated to influence the jury, is not cured by its subsequent withdrawal from their consideration. Welhousen v. State, 30 Tex. App. 623, 18 S. W. 300; Bluman v. State, 33 Tex. Cr. R. 43, 21 S. W. 1027, 26 S. W. 75; Barth v. State, 39 Tex. Cr. R. 381, 46 S. W. 228. We are not prepared to say in this instance that the error was harmless, or was cured by the subsequent withdrawal of this evidence.

Appellant reserved an exception to that portion of the charge on self-defense embraced in article 677, Pen. Code, which justifies homicide in the protection of person or property against any other unlawful or violent attack besides an attack to murder, maim, etc., or the inflicting of serious bodily injury, and provides that in such case all other means must be resorted to for the prevention of the injury. It is questionable to our minds whether this charge was authorized by the evidence. If appellant's theory be true, when he shot deceased, deceased was in the act of making an assault on him with a rock which weighed about five pounds (evidently a deadly weapon), or a pistol, or both. If this be true, the attack was of a character to cause appellant to believe that his life was in danger, or he was in danger of serious bodily injury, and not that he was in danger of a violent attack of a less degree, in which he would be required to resort to all other means before retreating, before killing his adversary. We do not believe this charge should have been given. Kendall v. State, 8 Tex. App. 569; Orman v. State, 22 Tex. App. 604, 3 S. W. 468; Id., 24 Tex. App. 495, 6 S. W. 544; Williams v. State, 22 Tex. App. 497, 4 S. W. 64; Kelly v. State, 27 Tex. App. 562, 11 S. W. 627; Hunnicutt v. State, 20 Tex. App. 633; Fuller v. State, 30 Tex. App. 560, 17 S. W. 1108. The court gave a very full charge on the law of self-defense, and then coupled with said charge, as a limitation thereon, an instruction to the jury on provoking the difficulty. We quote said charge as follows: "You are further instructed, as a part of the law of this case, and as a qualification of the foregoing charge on self-defense, that if you believe beyond a reasonable doubt that defendant, by his own wrongful act, brought about the necessity of killing deceased, and provoked a difficulty with the apparent intention of taking the life of deceased intentionally and with a view thereto, and that under such circumstances he shot and killed deceased, then defendant's plea of self-defense will not avail him, and the homicide would be murder in the first or second degree, according as the facts and circumstances may justify the jury in finding. But if you believe from the evidence that defendant provoked a difficulty without any intention to kill or inflict serious bodily injury, and suddenly and without deliberation did the act of killing, under the immediate impulse of sudden passion, arising from adequate cause, as hereinbefore explained in this charge, while the homicide would not be justifiable, it would be manslaughter as that term is hereinbefore explained. If, however, the blamable or wrongful acts of defendant, if any, were not intended to produce the occasion, nor acts which were, under the circumstances, reasonably calculated to produce the occasion or provoke the difficulty, then the right of self-defense would be complete, though the act be not blameless. On the other hand, if defendant did not provoke a difficulty with Walton, in which Walton was killed (if he was killed), and if defendant killed him, then the killing would be murder, manslaughter, or justifiable homicide, according to the facts in the case as applied to the law as contained in this charge." Appellant objected to this charge on various grounds: "(1) Because there was no testimony authorizing a limitation of the right of self-defense; (2) that, even if said issue was raised by the evidence, the charge failed to present all the law on the issue of provoking the difficulty, applicable to the evidence,—it failing to indicate the character of wrongful act on the part of defendant calculated or intended to provoke a difficulty; (3) that in this connection it was the duty of the court to group the facts on which he predicated said charge, and embrace them in the charge; (4) and, furthermore, that the charge of the court made appellant's right of self-defense, in connection with provoking the difficulty, depend upon his apparent, and not his real, intention." Of course, no one would contend, in every case where self-defense is interposed to a charge of felonious homicide, "that this right," which, as has been well said, "is the natural and inalienable right of every human being, and is to be held sacred and inviolable by any law of human or civil institution," should be limited or cut off by the doctrine of provoking a difficulty. In Abram's Case, 36 Tex. Cr. R. 46, 35 S. W. 389, the doctrine of provoking a difficulty was characterized as in the nature of an estoppel; that is, the effect of the evidence suggesting provocation was to cut off the right of self-defense by estopping a defendant to claim the same because of his acts in bringing on the conflict. Before a defendant can be deprived of his perfect right of self-defense, when the evidence raises that issue, there must then be testimony showing that he did some act to produce the occasion, and bring on the conflict. As was said in Cartwright's Case, 14 Tex. App. 502: "It would follow, therefore, that the conduct of the party must show that he knowingly and willfully used language or did acts which might reasonably lead to an affray or deadly conflict, and that something besides merely going to the place where the person is slain with a deadly weapon for the purpose of provoking a difficulty, or with an intent of having an affray, is required, in order to constitute such wrongful act." Of course, the act of provocation will depend upon the peculiar circumstances of each case; but we cull from the authorities that the act must be a hostile act, reasonably calculated to produce the occasion or bring on a difficulty, and it must have been so intended by appellant. To illustrate: A. has a grudge against B. He arms himself, and goes to a place where he knows he will meet B. He knows, or has reason to believe, that B. will resent an insult. He curses and abuses B....