McGrew v. State

• Decision Date: 25 January 1899
• Citation: 49 S.W. 226
• Parties: McGREW v. STATE.
• Court: Texas Court of Criminal Appeals

49 S.W. 226

McGREW v. STATE.

Court of Criminal Appeals of Texas.

January 25, 1899.

Appeal from district court, De Witt county; James C. Wilson, Judge.

D. McGrew was convicted of murder, and he appeals. Affirmed.

John H. Bailey and Davidson, Pleasants & Schleicher, for appellant. Mann Trice, for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 10 years, and prosecutes this appeal. The first error of which appellant complains is the overruling of his motion for continuance, which is based on the absence of one Mrs. Woo Sing. Process was issued for said witness to various counties, and the return from all said counties but one was to the effect that said witness was not found in that county. A person by the name of Mrs. Woo Sing was found in Bee county, and was present upon the trial, but appellant contended that she was not the witness wanted. We do not believe that the record shows sufficient diligence to procure said witness. As stated above, however, a Mrs. Woo Sing was brought under process from Bee county. Appellant's affidavit merely states that she was not the party wanted. It is a little remarkable that there should be two persons bearing this peculiar name, and evidently we would expect some further explanation in regard to this absent witness. The mere statement that the Mrs. Woo Sing procured was not the party wanted does not seem to us to be sufficient. If she was not the party who kept the restaurant where deceased is alleged to have eaten a meal, it would have been a very easy matter to have stated this as a fact. If she was the party who kept the restaurant, but would not testify, as claimed in appellant's application, then she would not have been wanted by appellant, and the statement in his application would still be true that she was not the party wanted. With reference to this application for continuance, we would note another matter. The application shows that the witness Mrs. Woo Sing was at the restaurant where appellant ate supper but a short time before the homicide. The record nowhere discloses that appellant ate supper anywhere that night. From all we can gather, he did not eat supper on that Sunday night. From a witness we understand that he ate dinner at a Chinese restaurant. We simply call attention to this matter of variance as going to show that, even had Mrs. Woo Sing been present and testified that deceased ate supper at her restaurant on that night, it was not probably true. We also call attention to another feature of the testimony of this absent witness. The application states that appellant expected to prove by her that, on the night of the alleged homicide, and immediately before it occurred, deceased was at the restaurant kept by witness in the town of Yoakum, Tex., and drew a pistol and flourished it, slamming it down on the table, and said that on that night he intended to kill that "God damn son of a bitch, D. McGrew," and thereupon witness required and ordered the deceased to immediately leave her place of business, which he did, and that shortly thereafter the difficulty occurred between deceased and defendant in which the homicide is alleged to have occurred. As stated above, evidently appellant did not eat supper anywhere that night. If the alleged threat was made at the dinner table, others were shown to have been present, but no such testimony was produced from any of them. Moreover, it is not shown that this alleged threat of deceased was ever communicated to appellant, and it does not occur to us that an uncommunicated threat would serve the purpose of shedding any light upon the circumstances attending the homicide. Being unknown to appellant, it could not have operated upon him so as to give any peculiar significance to any act or conduct of deceased on that occasion. Nor does it appear to us that it would have served any purpose with the jury as indicating who was the aggressor. A number of witnesses testify as to what occurred at the time of the homicide, and shortly before that time, and we do not believe that the absent testimony would have rendered more significant any act of the deceased during the altercation.

Appellant assigns as error the action of the court in giving a charge on provoking the difficulty, contending that there is nothing in the evidence authorizing such a charge. In connection with the court's charge on self-defense, we quote that portion of the charge on provoking the difficulty, as follows: "You are further instructed, as a part of the law of this case, if a person by his own wrongful acts brings about the necessity of taking the life of another to prevent being killed himself, he cannot say or claim that such killing was in his own necessary self-defense; but the killing will be in such case imputed to malice by reason of the wrongful act which brought it about, or malice from which it was done. The law is that he who brings on an affray in which he intends to wreak his malice cannot avail himself of the shield of self-defense, though his own life be imperiled in the affray, and that the slayer, if he provoked the contest or produced the occasion with the apparent intention of killing the deceased, or of doing him some serious bodily harm, is guilty of murder, although he may have done the act of killing suddenly and without deliberation, to save his own life. If you believe, beyond a reasonable doubt, that the defendant, by his own wrongful act, brought about the necessity of killing the deceased, and provoked the difficulty with the apparent intention of taking the life of the deceased, intentionally, and with a view thereto, and that under such circumstances he shot and killed the deceased, then the 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 the 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 influence of sudden passion arising from adequate cause, as hereinbefore explained to you in this charge, while the homicide would not be justified it would be manslaughter within the meaning of that term as hereinbefore defined in this charge. If, however, the blamable or wrongful acts of the 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." It has been held in a number of cases that, if there is nothing in the testimony suggesting a provocation of the difficulty on the part of defendant, it would be error for the court to give a charge on that subject. Morgan v. State, 34 Tex. Cr. R. 222, 29 S. W. 1092. The question thus presented for our consideration...