Paderes v. State

• Decision Date: 25 May 1898
• Citation: 45 S.W. 914
• Parties: PADERES v. STATE.
• Court: Texas Court of Criminal Appeals

45 S.W. 914

PADERES v. STATE.

Court of Criminal Appeals of Texas.

May 25, 1898.

Appeal from district court, Goliad county; James C. Wilson, Judge.

Elijio Paderes was convicted of murder in the second degree, and appeals. Reversed.

Lou C. Hill, for appellant. W. W. Walling and Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.

The evidence discloses that the homicide occurred at night, in the town and county of Refugio. The case was transferred on change of venue to Goliad county. The witness Garcia testified the deceased and himself had a personal difficulty a few steps from where the dance was in progress; that he was called out from the party by deceased, and cursed by him. The witness immediately slapped deceased in the face with his right hand and drew his pistol. The deceased turned, and ran in the direction of the crowd at the dance, followed by the witness, pistol in hand. Witness called out, "Stop the son of a bitch!" Deceased ran between the platform where the dance was going on and a row of booths on the south side of the platform. At the west end of this row of booths was a covered wagon or ambulance. Deceased was about 15 feet in front of the witness, who was pursuing him, both running at a high rate of speed. Just as they reached the ambulance, and deceased turned to the left, and witness passed the corner of the ambulance in pursuit, some one called, "Stop!" Both parties continued to run, the witness with pistol in his hand. Just at this point a shot was fired. Deceased ran a short distance, fell face downward, and died almost immediately. The witnesses differ as to whether the ball entered from the front or rear. It either entered immediately under the left nipple or made its exit at that point, the ball passing through the body. It was a cloudy, dark night, and the parties engaged in the difficulty were not recognized by the by-standers until they gathered around the body of the deceased. The testimony of some of the witnesses indicate the shot was fired at the deceased, other witnesses testifying only to the fact that they heard a shot. One of the witnesses did not even see the flash of the pistol. There was but one shot fired. The defendant and deceased had had no previous difficulty, and none upon this occasion. The witness Garcia testified that he was chasing the deceased with the view of inflicting blows upon him with his pistol for having cursed him. The defendant testified that he fired the shot when he saw the parties running, and was not aware who they were; that he called to the pursuing party (Garcia) to stop; that he did not do so, and he fired at him for the purpose of preventing him killing the deceased; that he did not see the deceased at the time he fired the shot, and did not know that he had shot him until he approached his body, lying upon the ground; that he believed at the time he fired the shot that Garcia was in the act of shooting the deceased; that the movement of his hand, the outstretching of the arm, and the pointing of the pistol at the deceased convinced him of that fact, and in order to save the life of the deceased he fired at Garcia. The defendant was a deputy sheriff of Refugio county. There was no attempt to arrest either the deceased or Garcia by the defendant. This is deemed a sufficient statement of the evidence to bring in review the questions suggested by appellant for a reversal of the judgment.

The court charged the jury that "homicide is also justified in the protection of the person from unlawful and violent attack, and in such case all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the act of making such unlawful and violent attack, or while the person killed is doing some hostile act or making some hostile demonstration that would be viewed from the standpoint of the slayer and produce in his mind a reasonable fear or expectation of death or of some serious bodily injury." He also in this connection charged the jury that the party who is thus violently attacked, or against whom such hostile acts or demonstration is made, is not bound to retreat in order to avoid the necessity of killing his assailant; and "the defendant would be justified in killing the deceased, if it is shown to have been done to...