Ott v. State

• Decision Date: 19 May 1920
• Docket Number: (No. 5833.)
• Citation: 222 S.W. 261
• Parties: OTT v. STATE.
• Court: Texas Court of Criminal Appeals

222 S.W. 261

OTT v. STATE.

(No. 5833.)

Court of Criminal Appeals of Texas.

May 19, 1920.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Ida Ott was convicted of manslaughter, and she appeals. Reversed.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

Under an indictment for murder appellant was convicted of manslaughter, and punishment assessed at confinement in the penitentiary for a period of three years.

The deceased, Andrew Ott, was the husband of the appellant. The tragedy occurred on one of the streets of the city of Dallas. Six shots were fired by the appellant from a pistol. The first shot, fired while the deceased was walking in front of the appellant, took effect on the side of his head, back behind his ear, and was a fatal one. He fell at once, and other shots were fired into his body. Deceased, a short time before the homicide, had filed a suit for divorce against the appellant, and secured an injunction against her interference with him. He was living in adultery with another woman at the time he was killed. A long course of ill treatment was described by appellant in her testimony, in which she claimed that the deceased first seduced her, and after marrying her required her to prostitute her person for his profit; that he had at one time wounded her severely by shooting her with a pistol, and had frequently threatened to take her life. Some of these matters were controverted, the state introducing evidence to show that the appellant was shot accidentally with her own pistol while she was undertaking to shoot deceased, and also that she had threatened and attempted to kill him on other occasions. She was a young woman. She claimed that, frightened by his repeated and specific threats to kill her, she obtained an automatic pistol and learned to use it. On the morning of the killing she phoned to the place of business of the employers of deceased, desiring, as she said, to get one of them to intercede with her husband, whom she still loved, and, ascertaining that her husband was not at the place of business, she went there for the purpose of an interview with his employers, and that while on her way she saw deceased walking on the street with a lady. As they were about to meet, the lady walked across the street and entered deceased's automobile. When they met, appellant said: "Who is your sweetheart?" Deceased replied: "None of your damn business who she is. I told you not to come down here, and God damn you I am going to get my gun out of my car and blow your God damn brains out"—and, uttering these words he started to run toward his car. Appellant said: "Andrew don't do that," she following him and asking him to wait. He continued his course until he had nearly reached the car, when, as she says, "I pulled my gun and fired." The state's eyewitnesses heard none of the conversation, but said that while the appellant was about an arm's length behind the deceased she fired the first shot, and when he fell she fired the remaining shots, and then knelt down by his body, and uttered some endearing terms with reference to him, apparently being very nervous and excited.

The criticisms of the court's charge on the law of self-defense, we believe, are without merit. This issue arose alone from appellant's testimony, and, in applying the law to the facts, the mind of the jury was directed specifically to the theory of the case upon which the appellant predicated the right of self-defense. The court said:

"Now if you believe from the evidence, or have a reasonable doubt, that at the time the defendant killed the deceased that the deceased had started across the street in the direction of an automobile, and that he had said he was going to get his pistol and kill the defendant, and if it reasonably appeared to the defendant that the deceased was about to attack her in such manner that it reasonably appeared to her, as viewed from her standpoint, under all facts and circumstances within her knowledge, that she was in danger of losing her life or suffering serious bodily injury at the hands of the deceased," etc.

In submitting the converse of appellant's theory, to the effect, in substance, that the mere belief that she was in danger in the absence of reasonable grounds upon which to base such belief, testing the reasonableness of the grounds as viewed from her standpoint at the time, would not excuse her, we think there was no error. Appellant has referred us to no precedent supporting her contention that in this respect the court's charge placed upon the appellant's right of self-defense an unwarranted limitation. See Tillery v. State, 24 Tex. App. 251, 5 S. W. 842, 5 Am. St. Rep. 882; Ruling Case Law, vol. 13, p. 816. There being no limitation placed in the charge of the court upon the right of perfect self-defense, there was no error in refusing to instruct the jury upon the right of appellant to arm herself. Williford v. State, 38 Tex. Cr. R. 393, 42 S. W. 972; Smith v. State, 81 Tex. Cr. R. 368, 195 S. W. 595.

The court in the main charge having told the jury that the appellant was in no event bound to retreat in order to avoid the necessity of killing the deceased, it was not incumbent upon him to repeat it in a...