Mounts v. State, 23017.

• Decision Date: 07 February 1945
• Docket Number: No. 23017.,23017.
• Citation: 185 S.W.2d 731
• Parties: MOUNTS v. STATE.
• Court: Texas Court of Criminal Appeals

185 S.W.2d 731

MOUNTS v. STATE.

No. 23017.

Court of Criminal Appeals of Texas.

February 7, 1945.

Rehearing Denied March 7, 1945.

Commissioners' Decision.

Appeal from District Court, Ellis County; A. R. Stout, Judge.

Oran L. Mounts was convicted of murder, and he appeals.

Reversed and remanded.

Henry Tirey, of Dallas, and Davis, Jester, Tyson & Dawson, of Corsicana, for appellant.

C. C. Randle, Co. Atty., Fred L. Wilson, Asst. Co. Atty., and Forrester Hancock, all of Waxahachie, and Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Murder is the offense; the punishment, ten years in the penitentiary.

The deceased, Jack Lummus, a policeman; appellant, a commissioned Texas Ranger, employed as a special officer of a railroad company; and Richardson, a nightwatchman, by chance and without previous arrangement, happened to meet in a small cafe operated by McDonald about ten o'clock the night of May 13, 1944. Each party carried on his person a pistol. Appellant took exception to a remark of Richardson which Richardson said he made as a jest and in fun. Richardson apologized. The deceased, speaking to appellant, then said: "What's the matter with you? You hurrah Johnny and we hurrah each other down at the City Hall." Whereupon, appellant pushed or shoved Richardson against deceased, causing him to stumble. McDonald, cafe owner, then said to appellant: "Mr. Mounts, if you are going to get rough, you will have to get outside." Whereupon, the three parties left the cafe — deceased first, followed successively by Richardson and appellant. Upon getting outside the cafe and onto the walk, deceased, while patting or tapping appellant on the shoulder or chest and in apparent good humor, said to appellant: "You railroad men can't take a joke like that." Appellant's reply thereto was not heard, but deceased replied: "Mr. Mounts, if I have said anything you don't like, or something you can't take, slap me in the face, and I can take it." He further said: "If I have done anything you don't like and you don't slap me, you are a dirty coward." Whereupon, "while Mr. Lummus (deceased) was there and still had his hands up there, as he got through speaking, Mr. Mounts stepped back and pulled a gun and pulled the trigger and Mr. Lummus fell * * *." He died immediately.

The foregoing facts are shown by the testimony of the State and are supported, in the main, by the testimony of four witnesses.

The happenings in the cafe, before the parties left the building, are not materially disputed by the appellant. The disputed issues of fact arise as to what occurred after the parties reached the sidewalk. Appellant's version as to what then occurred, as shown by his testimony, is as follows:

"When we came out of the restaurant, Mr. Richardson and Jack (deceased) stopped and I came out south of them, and I was south of them and they were north of me. When Rich walked between us, I kind of stepped around. My car was north of us there, and I wanted to go up to my car, and that left them south of me, and after John walked between us, I stepped around that way and Jack walked up to me and tapped me on the chest and said, `You are just a God-damned coward if you don't hit me,' and I said, `No, Jack, I don't want to hit you,' and I started to backing off, trying to get to my car, and Jack was following me up, but not as fast as I was stepping back, and he said, `Mounts, I want you to know that I told you,' and he reached for his gun and I reached for mine.

"I told him, `Jack, don't do that.' I don't know whether he got it all out or not, before I shot. Just as I got my gun out I pulled the trigger, I never did get my gun up. I shot quickly because I thought he was going to shoot me.

"I was afraid of him because I had heard what he had said about me, and I heard about him hurting other people. I did not turn around because I was afraid he would shoot me or hit me in the head with that gun.

"At the time this happened I was afraid of Jack Lummus. I was not mad at him. I just did not want to get hurt. I did not have any malice in my heart. I did not intend to kill him. My intention was, I just wanted to stop him. I didn't want him to shoot me. I had five other bullets in my pistol. I only shot one time, and I did that for my protection."

There was testimony showing both communicated and uncommunicated threats by the deceased against appellant, occurring a short time prior to the killing, and expressions by deceased derogatory to appellant.

The appellant introduced testimony showing two specific acts of violence by deceased in which deceased assaulted and "pistol-whipped" one Chris Dowdell and one Charlie Moore on different occasions. Appellant testified that he knew of these assaults by deceased prior to the killing.

The case was submitted to the jury upon the issues of murder with, and without, malice and self defense from apparent danger and threats.

Appellant insists that, under the facts here presented, he was entitled also to have the jury instructed in accordance with the provisions of Article 1224, P.C., authorizing self-defense against an attack less than one producing a reasonable expectation of fear of death or serious bodily injury. A proper exception was reserved to the court's charge presenting the question.

A similar contention was made in Boykin v. State, 184 S.W.2d 289, 290, wherein we said:

"It will be noted that Article 1224, P.C., has reference to `unlawful and violent attack.' The right of self-defense conferred by this article is statutory and, to arise, must come within the statute.

"It has been the consistent holding of this Court that the attack there referred to has reference to an actual attack; that it does not have reference to, nor is applicable when the injured party is about to make, an attack or is doing some act preparatory to the attack."

In other words, the right of self-defense provided by Article 1224, P.C. does not arise upon facts showing apparent attack as distinguished from actual attack.

In the instant case, appellant, by his own testimony, shows that he acted in self-defense from only the apparent attack or apparent danger as manifested by the demonstration of the deceased as if to draw a pistol. There was no actual attack shown or relied upon. We are unwilling to say that the tapping or patting of the appellant on the shoulder or chest constituted an unlawful or violent attack, as contemplated by Article 1224, P.C. The facts did not warrant or require the submission of self-defense under Article 1224, P.C. As supporting the conclusion reached, see also: Joubert v. State, 136 Tex.Cr.R. 219, 124 S.W.2d 368; Broussard v. State, 137 Tex.Cr.R. 273, 129 S.W.2d 295; Jones v. State, 125 Tex.Cr.R. 454, 69 S.W.2d 65; Bryant v. State, 51 Tex.Cr.R. 66, 100 S. W. 371.

Appellant excepted to the charge for failing to submit the law of aggravated assault.

Aggravated assault arises in a murder case when the instrument with which the killing occurs is not a deadly weapon, per se, or one which, in the manner of its use, is not ordinarily calculated to produce death and when, in addition thereto, the evidence raises the lack of intent to kill. Barnett v. State, 144 Tex.Cr.R. 249, 162 S.W.2d 411; Thompson v. State, 144 Tex. Cr.R. 321, 162 S.W.2d 728; Miller v. State, 112 Tex.Cr.R. 125, 13 S.W.2d 865; Bookman v. State, 112 Tex.Cr.R. 233, 16 S.W.2d 123; Johnson v. State, 125 Tex.Cr.R. 381, 68 S.W.2d 202; Barr v. State, Tex.Cr.App. 172 S.W.2d 322.

The facts do not bring the instant case within the rule stated, for here the instrument used was a deadly weapon, per se, a pistol fired intentionally at close range into the stomach of deceased. It would be a strange doctrine, indeed, to say that a shooting under such circumstances was done with no intent to kill. The issue of aggravated assault was not raised by the evidence.

We come now to a discussion of the most troublesome question presented by this record. The same relates to the alleged misconduct of special counsel for the State in propounding certain questions to appellant upon cross-examination.

In this connection, note is to be taken of the testimony showing the assaults by deceased upon Dowdell and Moore. With reference to this matter, appellant was asked, upon cross-examination, the following question:

"You speak about this pistol-whipping, that you heard about Chris Dowdell and Charlie Moore. You never did pistol-whip anybody, did you?"

To this question appellant replied, "No Sir." Objection of appellant's counsel to the question and answer was sustained, and the jury instructed to disregard same.

After a pause, and following the above, counsel propounded the following question to appellant, viz.,

"On December 24, 1933, at Live Oak-Oak Cliff Boulevard at 9:15, I will ask you if you didn't have an altercation and pistol-whip a victim?"

The trial...