Nami v. State

• Citation: 263 S.W. 595
• Decision Date: 07 May 1924
• Docket Number: (No. 8104.)
• Parties: NAMI v. STATE.
• Court: Texas Court of Criminal Appeals

263 S.W. 595

NAMI v. STATE.

(No. 8104.)

Court of Criminal Appeals of Texas.

May 7, 1924.

Rehearing Denied June 4, 1924.

Appeal from District Court, Hays County; M. C. Jeffrey, Judge.

Otto Nami was convicted of murder, and he appeals. Reversed.

Dickens & Dickens, of Austin, Barber & Johnson, of San Marcos, and H. G. Nami, of Cuero, for appellant.

Dan Moody, Dist. Atty., of Taylor, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Hays county of murder, and given 18 years in the penitentiary.

In view of our disposition of this case we shall discuss the facts no further than may be necessary to make plain our conclusions.

Appellant was a student in the University of Texas, and on the 9th or 10th of January, 1922, began boarding at the home of deceased under an arrangement, as testified to by him, made with Mrs. Ross, wife of deceased. On the 4th of the following February, at about 9 o'clock p. m., appellant shot and killed deceased at the family home in South Austin. On the premises at the time were appellant, deceased, Mrs. Ross, and two young sons of deceased, one of the latter being in bed with his mother, apparently, when the shooting took place. This boy and appellant testified for the defense. Deceased was staying in the country, and came in town the afternoon before he was shot that night. Deceased was shot through the body from the rear, and was found by the officers lying in a dark dining room on the east side of a hall which seems to have run the length of the house north and south. Mrs. Ross' bedroom was on the west side of said hall, and was the southwest corner room on the ground floor. Appellant testified at length as to the facts claimed by him to have transpired at the time of and prior to the shooting, showing the character and disposition of deceased, and his conduct toward his wife and children.

The charge of the court was excepted to for its failure to submit the defensive theories relating to appellant's right to defend Mrs. Ross and her child. A special charge was asked and refused, which is as follows:

"Gentlemen of the jury, you are instructed that the defendant had the legal right to protect or defend Maggie Ross or her child, or either of them against an unlawful assault on the part of John Ross. If, therefore, you believe from the evidence that the deceased tried to force an entrance into the room of Maggie Ross with the purpose of unlawfully assaulting said Maggie Ross or her child, or either of them, and that defendant knew of such unlawful purpose, or if it reasonably then and there so appeared to the defendant, taking into consideration his knowledge, if any, of the character and disposition of the deceased, then the defendant had the right to interfere and prevent deceased from entering said room or from making such an assault on Maggie Ross or said child, or either of them."

Appellant swore that soon after deceased came to his home on the night of the homicide he inquired for his wife, and was told by appellant that she was not feeling well and had retired early, whereupon deceased went to the door of his wife's bedroom, kicked on it, and called to her, and told her if she did not open the door he would kill her; that, fearing deceased would hurt his wife and son, he took hold of deceased and tried to get him to not disturb his wife; that deceased drew a knife and told appellant that it was none of his business; that deceased then went down a hall and into another room, from which a door opened into his wife's bedroom, which door, however, was also closed and locked; that he followed deceased, and was watching from the hallway; that, as deceased was about to force said door, he observed appellant, and with an oath demanded to know why appellant was following him, and threatened to kill appellant; deceased then came toward appellant, and picked up from a mantel a small bust of Scott, and threw same at appellant, striking him on the hand; that deceased then again threatened to kill appellant and drew his knife; appellant grabbed the arm of the hand in which the knife was, and the two men scuffled around in the hall, jerked loose from each other, and deceased went into the dark dining room, behind which was a kitchen opening on a back porch, on which porch was a shotgun; appellant said, believing that deceased was going to get this gun to kill him with, he ran into the southeast room of the house to a drawer in which was a pistol, got the pistol, came back out in the hall, and fired into the dark dining room into which deceased had gone. As stated above, officers who arrived in a few minutes found deceased on the floor of this dining room shot.

Examination of the charge discloses that nothing therein gives the jury any light upon the right, if any, of appellant to do anything to prevent any assault by deceased on Mrs. Ross. This, according to appellant's claim, led him to do and say those things which caused the assault by deceased with the bust, also the drawing of his knife, and induced belief on the part of appellant that deceased was purposing to continue the assault upon him by getting a gun and shooting him. Whether these things actually so transpired was for the jury under all the facts in evidence; but for the purpose of determining the law applicable to the defensive theories the court could only look to the defensive testimony and be bound thereby.

The jury were called on to determine whether the shooting was upon malice, or under circumstances reducing to manslaughter or in self-defense. What was done and said by the parties immediately before the shooting became its antecedents, and may have created the mental attitude which would give character to the homicide as being upon malice, or upon sudden passion, or in self-defense. Whether one who embarks on a given enterprise be wrong or has some right on his side in the beginning might give color to conflicting theories as to his sequent acts and conduct. One who arms himself, fearing danger, and seeks an explanation, in a proper case has the right to have the jury told that the fact that he did so arm himself would not deprive him of his right of self-defense, else the fact that he went armed to where his adversary was might of itself be given harmful effect by the jury.

Analysis of the requested charge above quoted indicates that its purpose was merely to inform the jury as to appellant's right to do what he claims he did in the initial part of the transaction, i. e., to interfere and prevent deceased from entering the room of Mrs. Ross, provided appellant knew that the purpose of deceased was to assault her, or if it reasonably appeared to him from what occurred and from his knowledge of the character and disposition of the deceased that such was his purpose. In the absence of some such instruction as that under discussion it is easy to see how appellant's admitted interference with the effort of deceased to get into his wife's room might have been given harmful effect by the jury. Men, on the jury or off, are prone to look with ill favor on acts of other men who meddle in the domestic affairs of others without right, and in debatable cases are apt to let the natural prejudice against such conduct turn the scale against the outsider. It seems to us that this is especially true in a case where the state places dependence on the theory of illicit relations between the accused and the woman in whose behalf he claims to have acted, or where it is asserted that there was a conspiracy between said woman and the accused to bring about the death of her husband. The requested charge does not seek to set forth any right of acquittal on the ground of defense of the woman, and, as we understand it, is confined to an announcement of the right of appellant to prevent deceased from entering the room of Mrs. Ross, if he knew or had a reasonable ground to believe that the purpose of deceased in such entry was to unlawfully assault her. To this extent we believe the charge should have so informed the jury, and that in failing to so instruct them or to give the requested instruction there was error. What we have said is predicated upon the necessary assumption by the court that the accused was telling the truth in his narration of what occurred. The question as to whether he was in fact telling the truth, and whether these facts correctly represented the transaction, was one for the jury's determination.

Appellant complains of the refusal to allow Uffie McLean, a niece of Mrs. Ross, to testify that before the killing she and appellant discussed, with a lady whom they met at a beauty parlor, the fact of their engagement, and advised with her as to their marriage. The pertinence of such testimony is urged on the ground that the fact of such engagement would shed light on the reasons which caused appellant to become an inmate of the Ross home, and to some extent combat the effect of the state's testimony and its theory that illicit relations between appellant and the wife of deceased influenced him in committing the homicide. We are referred to the trial court's qualification of the bill of exceptions presenting this complaint, and are there referred to the statement of facts. From same we nowhere learn that appellant was engaged to Uffie McLean when he went to board at the Ross home. Both testified as witnesses, and neither affirm such engagement. It does not appear from the testimony that appellant went to said home remotely influenced by any engagement.

There was no error in the rejection of the statements made by appellant and Uffie McLean concerning their engagement to the lady whom they saw at the beauty parlor. Miss McLean testified without objection that on January 26th she and appellant became engaged. Appellant also, without objection, testified that before this killing they became engaged. No...