Middleton v. State

• Citation: 179 S.W.2d 510
• Decision Date: 05 January 1944
• Docket Number: No. 22670.,22670.
• Parties: MIDDLETON v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

179 S.W.2d 510

MIDDLETON v. STATE.

No. 22670.

Court of Criminal Appeals of Texas.

January 5, 1944.

Rehearing Granted April 12, 1944.

Appeal from District Court, Coleman County; O. L. Parish, Judge.

Motern Middleton was convicted of murder without malice, and he appeals.

Reversed and remanded.

Baker & Baker, of Coleman, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of murder without malice, and assessed a term of two years in the State prison.

There is but one bill of exceptions in the record and that relates to the claimed misconduct of the jury. It is rather voluminous, consisting of 73 pages in question and answer form, such certified as necessary by the trial court. The statement of facts in the trial of the main case consists of but 43 pages, thus evidencing the fact that the trial of the jury's misconduct took up more of the court's time than the trial of appellant.

The facts are claimed to be insufficient to establish appellant's guilt, and it is alleged that same showed a killing in self-defense only.

Appellant and several other negroes had passed the home of the deceased's father, who was a Mexican. A dog, belonging to the father, had barked at appellant, who was very nervous, and some conversation ensued relative to the dog's conduct. Appellant and his companions then went on down to a pool or creek near the home of deceased's father and were preparing to go in swimming. The deceased, Nino Sandejos, accosted the negroes, and probably some rather strong language was used by both parties. The conversation being over, these negroes went in swimming at such place, which was near where the deceased and his father lived. Finally the deceased went to the nearby car of a friend and took a 22 rifle therefrom, and came up to where appellant was standing, and pointed the gun at appellant's stomach. A witness stated, and the jury evidently believed, that appellant at such time had a pistol in his hands hidden behind his body. Eventually appellant claimed to have grasped the gun and same went off, making a small wound upon his little finger; he then shot the deceased in the neck, and took the 22 rifle and threw it in the nearby creek. The deceased was wounded in a dangerous place near the jugular veins, and he was taken to a hospital where, after examination, the doctors refused to operate and extract the bullet, but directed that he be taken home and left to await developments. The wife of deceased was dissatisfied with such treatment and put him in an automobile and carried him to Brownwood, some miles distant from deceased's home. The doctors there proceeded to operate immediately, and the deceased died soon on the operating table.

The facts upon which the jury could predicate the verdict rendered are present in the record, and we do not think this court would be justified in setting this verdict aside on account of such insufficiency.

The allegations relative to alleged misconduct of the jury are to some extent supported by the affidavit of one of the jurors, but it is noticed that pertinent portions of such affidavit were not supported by the testimony of such juror; in fact some of the statements in the affidavit were denied by the juror as having been made by him. Some of the statements complained of as having been made in the jury room were but argumentative matters, and made well within the province of the jury, such as that if appellant was sent down to the penitentiary it might make a better man out of him. A portion of the object of punishment provided for by the statute is to "reform the offender." Art. 2, P.C.

Again it is complained that a certain juror was prejudiced against the law of suspended sentences, and that he had so expressed himself in the jury room, notwithstanding the fact that he had expressed himself as being of an opposite view on his voir dire examination. According to the testimony adduced on the motion for a new trial, we are inclined to the belief that what the juror said was that he was opposed to the granting of a suspended sentence to this appellant whom he thought had committed a murder; that he did not believe in granting a suspended sentence on account of the facts produced in this case; that the juror himself would rather run than shoot a man.

After a patient reading of this voluminous bill, as certified to by the trial court, we are of the opinion that there was no erroneous conduct upon the part of the jury to such an extent that would justify this court in reversing this case. Without a further attempt to here review other claimed acts of misconduct upon the part of the jury, suffice it to say that we are of the opinion that such alleged acts as would have constituted misconduct upon the part of the jury are not sustained by the evidence.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant contends that all the evidence both of the State and appellant shows that he acted in self-defense and therefore his conviction is not justified. The State's first witness, Robert Fulton, testified in substance that he, in company with appellant and others, went to a creek at a point about one hundred yards below the home of deceased's father to go "swimming"; on the way to the creek they passed the home of the deceased's father and a dog ran out and barked at them; appellant threw a rock at the dog and deceased's father asked him not to "chunk" the dog, whereupon appellant remarked, "Call your dog back." About the time they were ready to go into the water someone said, "Here comes that Mexican boy." Witness saw deceased with a rifle, the barrel of which he had pressed against appellant's abdomen. Witness heard a shot and saw appellant take the gun from deceased who was lying on the ground, and throw it into the creek. Appellant did not attempt to shoot deceased any more.

The State's second witness, Johnny Williams, testified in substance that he was present at the time and place of the shooting; he heard deceased "holler" while he was still at the house but did not understand what he said. Appellant replied, "You go to hell." Soon deceased came to the swimming hole and asked appellant if he was trying to get smart with him; appellant replied with some ugly word, at which time he had a pistol in his hand behind his body; deceased had a rifle in both hands pointing it towards appellant; he saw deceased put the end of the rifle into appellant's stomach; appellant knocked the gun up and it fired; then appellant shot deceased. After deceased fell he saw appellant pick up the rifle and throw it into the creek.

Mrs. Ada Thomas testified that she was at her father's home located on the south side of the creek. We quote from her testimony.

"The defendant and deceased were in sight of me when the shooting occurred. The deceased was standing between me and the defendant; they were facing each other. The deceased had his back towards me. I did not see the defendant before he shot the deceased. When the deceased fell the defendant grabbed the gun out of the deceased's hand, threw it in the creek and said, `You ain't going to shoot me.' When the deceased was shot he had the gun lying on his arm. I don't know just how that gun was lying at the time the defendant shot. I didn't hear but one shot at the time of the killing but there could have been more than one. The way it was the defendant shot him and he fell and he ran, grabbed the gun out of his hand and threw it in the creek. Just before the defendant grabbed the gun out of deceased's hand he said, `You are not going to shoot me with that gun.'"

Appellant testified in his own behalf, in substance: That he and deceased had not had any trouble prior to the day of the shooting; that while he and his companions were at the swimming pool, getting ready to go in bathing, the deceased hollered at them saying: "You damned negroes get off of that bank," to which he replied, "You go to hell." After the remarks were passed deceased came to where appellant was and said, "What damn smart words were those?" He then threw a gun into appellant's stomach; appellant knocked it away and the gun fired, whereupon he shot deceased; that he did so because he thought his life was in danger when he had a gun pointed at his stomach; that he believed deceased was going to shoot him; that appellant would not have shot deceased if he had not believed that deceased was ready to shoot him (appellant).

Article 1207, P.C., provides that homicide is justifiable in the cases enumerated in the succeeding articles. Article 1223, P. C., which is one of the articles referred to, reads as follows:

"When [a] homicide takes place to prevent murder * * *, if the weapon or means used by the party attempting to commit such murder * * * are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury."

See McCoy v. State, 135 Tex.Cr.R. 73, 117 S.W.2d 787.

Article 45, P.C., provides as follows:

"The intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act."

In the instant case, all the evidence shows that deceased made an assault upon appellant with a deadly weapon. The presumption obtains that he intended to kill appellant or inflict serious bodily injury upon him. Appellant appears to have been justified in the conclusion that deceased intended to kill him or to inflict serious bodily injury. Under the circumstances he would be justified in the exercise of his legal right of self-defense to resort to such means and such force as seemed reasonably necessary to him to protect himself against such an unwarranted assault. See Smith v. State, 15 Tex.App. 338; Carson v. State, 43 Tex.Cr.R. 265, 64 S.W. 1046, and Clarkston v. State,...