Norris v. State

• Decision Date: 13 March 1901
• Citation: 61 S.W. 493
• Parties: NORRIS v. STATE.
• Court: Texas Court of Criminal Appeals

61 S.W. 493

NORRIS v. STATE.

Court of Criminal Appeals of Texas.

March 13, 1901.

Appeal from district court, Wilbarger county; G. A. Brown, Judge.

B. J. Norris was convicted of murder in the second degree, and appeals. Reversed.

Huff Hall, for appellant. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at five years' confinement in the penitentiary.

In order to properly understand the various questions discussed, it becomes necessary to make a short statement of the salient features of the evidence: Appellant was the landlord of John Brewer, and Ed (a brother of John Brewer) lived with John Brewer. Appellant lived in the same house with the Brewers, and used adjoining lots. The difficulty out of which the killing occurred arose over the placing of John Brewer's cattle in what was known as the "Little Lot" by defendant the night previous to the shooting. On the morning of the difficulty, defendant went out in his field and got an arm load of cut corn in the stalk to feed his horses, in the big lot. When he got inside the big lot he saw Ed Brewer (deceased) and his brother John in the big lot, near the gate of the little lot, and all of the cattle of the Brewers in the big lot, where he was going to feed his horses. When appellant first saw the Brewers, they were walking close together, with their backs to him. When he got within 10 or 15 feet back of them he said, "John, I wish you would put the cows into the lot until I can feed my horses." John Brewer said, "By God! you build me a lot." Defendant said, "I did not contract to do that." Brewer said, "You are a God-damn liar." Defendant turned loose the corn, pushed up his sleeves, and started towards Brewer. John Brewer stepped back to the calf pen by the little lot, and pulled off a slat. Deceased went to where there were some bushes, and picked up a rock weighing about two or three pounds. When deceased got the rock, and John the plank, defendant started to the gate. They cursed defendant, whereupon defendant called to his son Bruce to bring his gun. The boy did not obey. Appellant then started to the house, where he and John Brewer both lived, but in different rooms. Both of the Brewers followed defendant. Defendant went to his room, John Brewer saying, "Ed, get your six shooter;" and, before defendant reached his door, John Brewer ran into his (Brewer's) room. Defendant obtained his gun and returned to the front door, and stuck his head out. John Brewer was standing in his door, with his gun pointed towards defendant's door. Defendant stepped out into the yard. John Brewer was cursing him,—calling him a God-damn liar. Deceased was standing out within 10 or 12 feet in front of John's door. Defendant walked between them, going to the lot, with both of them following him,—John with his gun in his hand and deceased with a rock. As appellant passed out of the yard gate, two or three steps beyond it, John ran in ahead of him; and defendant stepped to the west of the path a step or two, and deceased started to go in behind him, between defendant and the fence. Defendant motioned to him not to get behind him, and told him to stay in front. Then something was said about the contract. John Brewer said: "I will call Lottie [his wife], and prove it by her." Then he said to deceased: "Get around him. Get around him. God damn him! we will fix him." He motioned his gun two or three times, like he was going to strike defendant, then raised it like he was going to shoot defendant, and defendant shot as quick as he could. As soon as the gun fired, deceased ran in, striking at defendant with the rock. Defendant threw up his arm, knocked the lick off, and the rock fell out of deceased's hand. Deceased then grabbed the gun, and defendant and deceased began to scuffle, and directly they came close to an ax. Deceased was looking at the ax as if he was going to get it. Defendant told his son Bruce to get the ax. Deceased turned the gun loose with one hand, reaching for the ax, and Bruce put his foot on it. Defendant then slung deceased loose, and deceased grabbed for a stick, and, as he came up with it, defendant shot. Deceased staggered for a step or two and fell. The above is, in substance, the testimony of defendant. John Brewer contradicts defendant in many and very material points, but states that he followed appellant from the lot to the house, got his gun, and then followed defendant to the yard gate, together with his brother; both following behind defendant to the yard gate. When they got there all stopped and entered into a discussion of the contract. John Brewer told defendant he could prove the contract as he understood it by his wife. Defendant stated: "If his [Brewer's] wife would swear that, she would lie." John Brewer turned to go to the house, and told defendant he was going to have him arrested. After he had gone a step or two, he heard a noise, turned his head, and defendant fired, knocking him down on his knees and hands. He fell with his back to defendant and his brother, and his face to the house. "When I turned around, my brother was on the west side of the path; and, when defendant shot me, my brother grabbed the gun and began to scuffle with defendant over it. They scuffled awhile. Defendant called for Bruce to bring the ax. When Bruce got the ax and ran up to them, my brother turn the gun loose and started away. When he got about three or four steps away, defendant shot him. I saw my brother when he was shot, and he just reeled and fell, and said, `Oh Lordy me!' or something like that. I saw defendant after the shot was fired. He walked off a few steps, and called for shot and powder, and reloaded his gun. Defendant then walked around to where my brother lay, and said not to be uneasy; `You are mine now, and I am too game to shoot a man when he is down." This latter statement, as well as many others, was contradicted by defendant. Deceased in his dying declaration in many respects corroborates his brother John Brewer.

Complaint is made in bill of exceptions No. 4 to the refusal by the court of the following requested charges: "(1) When an unlawful killing takes place under the immediate influence of sudden passion, and no cause exists which will, under the law, justify or excuse its commission, then, in order to determine whether such homicide is murder in the second degree or manslaughter, the true test is, was there adequate cause to produce such passion? If such adequate cause existed, the homicide, if not justifiable, would be manslaughter. (2) And you are further instructed that any condition or circumstance which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment, or terror, rendering the mind incapable of reflection, whether accompanied by bodily pain or not, is, in law, adequate cause. (3) And in this case, if you should find from the evidence that the defendant shot and killed Ed Brewer, and that at the time he did so the actions and words of Ed Brewer, taken in connection with the words and actions of John Brewer, the age and relative strength of the parties, the weapons used by each, if any, and the demonstrations, if any, made by either at the time, was of such a nature as to produce adequate cause, as above explained, and did produce such adequate cause, sufficient to render defendant's mind incapable of cool reflection; and if, under the immediate influence of anger, rage, sudden resentment, or terror, the defendant shot and killed Ed Brewer; and if you are satisfied from the evidence, beyond a reasonable doubt, that the defendant did not kill said Ed Brewer in self-defense,—then you may find him guilty of manslaughter." We think the evidence on the part of appellant raised the issue of manslaughter, and the above-quoted charge should have been given to the jury. As indicated above, appellant and the main prosecuting witness testify that, just immediately prior to the difficulty in which deceased was killed, appellant and John Brewer (brother of deceased) were in a heated colloquy over the terms of a rental contract made by appellant with John Brewer; and, just prior to the time this colloquy occurred, appellant and John Brewer had had another difficulty at the lot, in reference to the turning out of some cattle. Each had returned to the house and secured a gun. Both, together with deceased, were on their way back to the scene of the first difficulty, a few yards from the house. Certainly all these facts and circumstances were reasonably calculated to produce in the defendant's mind a degree of anger, rage, sudden resentment, or terror such as would likely render his mind incapable of cool reflection. At any rate, the evidence is amply sufficient to raise that issue, and the court should have so charged. Gilcrease v. State, 33 Tex. Cr. R. 619, 28 S. W. 531; Baltrip v. State, 30 Tex. App. 545, 17 S. W. 1106; Hawthorne v. State, 28 Tex. App. 212, 12 S. W. 603; Cochran v. State, 28 Tex. App. 422, 13 S. W. 651.

Appellant also complains that the court erred in refusing to give a special charge requested, as contained in bill No. 3, as follows: "If the defendant killed Ed Brewer, he would be justified in doing so if he acted upon the reasonable appearances of danger of death or serious bodily injury to himself, which reasonable appearances are to be considered and determined from his standpoint. It matters not whether the danger was real, whether in fact it existed, or whether it was merely colorable. If, from defendant's standpoint, taking into consideration all of the circumstances of the case, it would reasonably appear to him that he was in danger of death or serious bodily injury from the deceased or from his brother John Brewer, he had the right to kill the deceased, although no such danger existed. If to the defendant it reasonably appeared that the danger in fact existed from the...