Merritt v. State
| Decision Date | 27 June 1919 |
| Docket Number | (No. 5464.) |
| Citation | 213 S.W. 941 |
| Parties | MERRITT v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
J. F. Merritt was convicted of manslaughter, and he appeals. Reversed and remanded.
Mahaffey, Keeney & Dalby, of Texarkana, for appellant.
C. M. Cureton, Atty. Gen., and E. F. Smith, W. J. Townsend, and E. A. Berry, Asst. Attys. Gen., for the State.
In this case appellant was convicted in the criminal district court of Bowie county of the offense of manslaughter, and his punishment fixed at two years' confinement in the penitentiary.
Enough of the facts will be stated in the opinion. The eighth paragraph of the court's charge, wherein he submits negligent homicide, makes the guilt of appellant depend on whether the evidence showed it to be apparent to the appellant at the time he struck at the witness Johnson that deceased was in danger of being killed. A charge should not be given without, at least, some evidence to support it, or raise the issue therein submitted. Only two eyewitnesses testified to the facts immediately attendant upon this homicide—Johnson, the husband of deceased, and the appellant. Appellant denied in toto the testimony of Johnson, and denied the presence of deceased at the time Johnson says the encounter between the men took place, and Johnson says he did not know where his wife was at said time; that he had not seen her since he came into the room. No other fact was testified to by either of them from which knowledge of her presence in the room could be imputed to appellant, unless it be the fact that she was shot. Johnson says appellant was looking at him when he struck with the pistol and it fired. Under this state of the record, the portion of the charge above mentioned on negligent homicide should not have been given. This is said in view of the possibility of another trial.
The court's charge on self-defense was erroneous. If appellant was placed in such position by the circumstances as gave him the legal right to defend against an unlawful attack on the part of Johnson, causing him to have a reasonable expectation or fear of death or serious bodily injury, his right of self-defense would inure regardless of whether the discharge of the pistol was accidental or otherwise. The court's charge was erroneous in requiring the jury to believe that such discharge was accidental before appellant's right of self-defense existed.
A pistol used as a bludgeon is not per se a deadly weapon. Branch's Ann. P. C. § 1587, and authorities cited. Under the testimony of the witness Johnson, appellant struck at him with a pistol used as a weapon to strike with. Johnson says he dodged forward and to the left as appellant made this blow, and that either the pistol or the hand of appellant struck his shoulder; that it was such a light blow he hardly felt it; that when this blow was struck the pistol fired; that immediately preceding said blow by appellant he had struck appellant with his fist as hard as he could, staggering him back a step or two, and that as appellant straightened he came over with said blow with the pistol. The court had charged the jury, under the head of adequate cause to produce sudden passion, that an assault and battery by Johnson upon appellant was adequate cause. Bearing these facts in mind, we call attention to the provisions of article 1149 of our Penal Code, which is as follows:
"Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery."
The provisions of this article should have been substantially given in charge to the jury, coupled with definitions of various grades of assault. This court feels that it is in duty bound to frankly say that there exists a serious doubt in the mind of the court as to the sufficiency of the evidence to show appellant's guilt. Johnson and appellant were friends, and lived about four miles apart, Johnson being a farmer, living with his wife and child, and appellant being a sawmill man, living in the village of Maud, in Bowie county, and there had been numbers of business transactions between the men, all of which appeared to be pleasant, and Johnson was selling some logs to appellant at the time of the homicide. Appellant had gone to Johnson's house, getting there about 11:30 in the morning, as he says, to see Johnson with regard to said logs, and, finding out that Johnson was away but would be back at noon, he went into the house and took a seat by the fire.
Johnson testified that he came home about noon, and found his back door locked, and went to the front door, and found it locked, but on trying the door again it was opened by his wife, who seemed to be a little agitated and her voice trembly, and said, "I am glad you came;" that he walked into the room which was occupied by him and his wife as a dining room, and laid some fresh meat, given him by a neighbor, on the dining table; that he looked through the door into the bedroom to the north and saw appellant in the act of getting up with a pistol in his left hand; that he at once went to an incubator in the southwest corner of the dining room, and got a 45 Army Colt's pistol of his own, with which he advanced to the door leading into the bedroom; that just as he got to the door he met appellant, still holding his pistol in his left hand and down by his side; that he covered appellant with his pistol, and appellant said, "Don't; I haven't done anything;" or, "I ain't going to do anything;" that he lowered his pistol, and as he was lowering it appellant suddenly jerked it out of his hand; that he immediately struck appellant with his right fist as hard as he could, staggering him back; that as appellant straightened he came over with Johnson's pistol and struck at Johnson; that he (Johnson) dodged to the left and forward, and was struck on the shoulder a light blow, which he hardly felt, either by appellant's hand or the pistol, which fired simultaneously; that he straightened up, and, seeing appellant meant him harm, he ordered him out of his house; that appellant said he would go, but wanted his hat; that he (Johnson) walked into the bedroom, and picked up appellant's hat, lying by the bed, and came out and gave it to him, and appellant walked out on the porch, where he stopped and accused Johnson of having killed his own wife; that he went out on the porch, and his wife was lying a short distance north of the steps; that he asked appellant to help him bring her in the house and appellant refused; that appellant got in his car, carrying both pistols, and went on off up to Griffin's who was Johnson's nearest neighbor; that after washing the blood from the face and neck and hair of his wife, and getting her body into the house, he went on up to Griffin's, meeting appellant and Griffin on the way.
For himself appellant testified that after taking his seat by the fire, he talked to Mrs. Johnson for a short time, and she excused herself and went on about her work; that he knew of no trouble until Johnson came; that he heard a woman's voice say, "Oh! my God, George, don't do that," and immediately heard a pistol shot; that he got up and went to the door leading out of the bedroom, and as he stepped through it Johnson struck at him there beside the door with a pistol; that he ducked down, and was struck on the back of the head by the pistol, cutting quite a gash; that he grappled with Johnson, and somehow took the pistol away from him, and that he then got his hat and went out, and when he got on the porch he saw Mrs. Johnson lying in the yard north of the steps, and said to Johnson, "You have killed your wife;" that he (appellant) refused to put his hands on the body, and went out and got in his car and started up the lane; that he had...
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