Parkman v. State, 23171.

• Decision Date: 05 December 1945
• Docket Number: No.23171.,23171.
• Citation: 191 S.W.2d 743
• Parties: PARKMAN v. STATE.
• Court: Texas Court of Criminal Appeals

191 S.W.2d 743

PARKMAN v. STATE.

No.23171.

Court of Criminal Appeals of Texas.

December 5, 1945.

Rehearing Denied January 23, 1946.

Commissioners' Decision.

Appeal from District Court, Bailey County; C. D. Russell, Judge.

J. W. Parkman was convicted of murder without malice, and he appeals.

Judgment affirmed.

E. A. Bills, of Littlefield, and Cecil H. Tate, of Muleshoe, for appellant.

Harold M. LaFont, Dist. Atty., of Plainview, T. R. Odell, Sp. Pros., of Haskell, and Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Under an indictment charging a malicious killing, appellant was convicted of murder without malice and his punishment affixed at three years' confinement in the penitentiary.

Appellant presses upon us his contention that his plea of self-defense was so abundantly established by the uncontradicted testimony that the jury was not warranted, as a matter of law, in rejecting same.

In making this contention, he recognizes the controlling rule to be that in order for a reviewing court to hold, as a matter of law, that a defendant in a homicide prosecution killed in self-defense, the evidence must be uncontradicted and no issue thereon presented for the jury's determination. Parker v. State, 138 Tex.Cr. R. 478, 136 S.W.2d 229; Patton v. State, 129 Tex.Cr.R. 269, 86 S.W.2d 774.

As early as 1884, in the case of Smith v. State, 15 Tex.App. 338, at page 346, this Court announced the rule in determining when self-defense is established as a matter of law to be as follows:

"It is a well-settled rule of law that if, at the time of the killing, the conduct of the deceased, viewed in the light of all the circumstances, was such as to create in the mind of the defendant a reasonable apprehension of death or serious bodily injury, the defendant would have the right to kill, whether the danger was real or apparent.

"Was the conduct of the deceased in this case of such character as was reasonably calculated to create in the mind of the defendant this apprehension of death or serious bodily harm? Could any other inference be drawn from his conduct than that he intended to murder the defendant? Was not this the only reasonable conclusion which could be made from the facts? If so, is it not reasonable and just to presume that the defendant believed his life to be in danger, and shot his adversary to save his life? * * *"

It is in the light of the rules stated that the instant facts are analyzed:

Deceased, R. C. Dennington, forty years of age, and Nora Dennington, the daughter of appellant, had been married about twenty years at the time of the fatal difficulty. They had accumulated a comfortable community estate, notwithstanding the fact that they had considerable trouble during their marriage. They had separated some four or five times but each time a reconciliation was effected. However, on Sunday afternoon, November 5, 1944, Mrs. Dennington left the deceased and went to the home of her father. The next day, Monday, she filed a suit for divorce and, on that same day, she and deceased entered into a written agreement as to a division of the community estate, in which—among other things—it was agreed that she should have the homestead and household furniture. The immediate cause of the separation and divorce proceedings, as testified to by Mrs. Dennington, was a series of mistreatments culminating in physical abuse, threats on Sunday afternoon to kill her, and the further fact that deceased had been boot-legging whisky for some time and was preparing to go into that business on a larger scale. Mrs. Dennington testified that on Sunday night she told her father of the mistreatment, threats, and plans of the deceased.

On the day of the homicide (November 13, 1944) Mrs. Dennington, accompanied by her father, drove to the little town of Bula, in Bailey County, where deceased was operating a cafe, for the purpose of obtaining from the deceased the key to the house and to get a stove from the house. Appellant and Mrs. Dennington drove to the front of the cafe and "honked the horn." Deceased was not in the cafe but was across the street at a filling station. He saw them and came to the car on the driver's, or appellant's, side. Upon being asked by Mrs. Dennington for the key to the house, he repudiated the previously agreed property settlement and said to her, "I am not giving you a God damn thing only what you can get out of court." To this appellant replied, "That's all right," and started to drive away as if to turn around in the street. The car moved a short distance in that endeavor when Mrs. Dennington called to appellant to "Look out." Thinking deceased was about to attack him, appellant reached out and got a pistol from the glove compartment. About that time, a rock thrown by deceased came crashing into the car through the open window by the side of appellant, striking the dash or instrument panel of the car. Deceased was to the back and side of the car at that time. Appellant, seeing that deceased did not have a gun, threw the pistol back into the glove compartment and attempted to drive away. In so doing, he suddenly applied the gas to the car, causing it to choke down and jump. The car moved a short distance in this condition.

"The next thing I knew," appellant testified, "* * * something hit the glass behind me, and I thought well he had just taken a shot at me, and I just reached and got my gun and stopped the car and got out. When I did he was just behind, a little to the left, just behind and kinda to the left part of my car. He kinda blundered and, oh, just about half way fell; kinda stepped in a low place and about half way fell. And when he raised up, why I asked him to stop. I asked him to stop. I saw he didn't have no gun. Then he got straight, he started at me with that, and I shot over him, thinking maybe he would stop, and he kept coming, and I dodged him and shot over him again, and he just kept crowding me and I thought the only thing to do was to stop him. This looks like the club he had in his hand. He was coming with that stick like that, just come right down like that (indicating), it looked, the way he was coming. He didn't hit me on the head, because I just knocked his lick off. My hand caught his lick right there (indicating). He hit me right across there and knocked a hole in my hand there with the stick. I just grabbed it, caught it when he came at me there, caught it like that (indicating).

"If I hadn't warded off the lick with my hand like this, he would have hit me in the head with the stick, the way he was coming. He kept hitting me all the time my hand was already cut and bleeding and bruised. He was still coming on me with the stick. He was still coming. I knew I couldn't ward it off always, because my hand was already hurt.

"During this time I was kinda backing, backing trying to get away, trying to keep him from hitting me. He kept right on coming and just—it looked like it was me go down or him, and it looked to me like he was doing his best to get to me to put me down. As to whether I was afraid he would kill me, I knew he would kill me if he could get to me. * * *

"When I shot the last shot at him he was right up on me and over me with that stick when I shot the last shot. * * * I figured that if I didn't stop him that he would get me."

The stick above referred to was identified as being a piece of lumber 2×2, twenty-four to twenty-six inches in length. The weight was not given.

According to appellant's testimony, four shots were fired by him, the first two of which did not hit the deceased. The third struck him in the right shoulder, while the fourth and fatal shot struck him just under the chin.

Appellant was supported in his defensive theory by Mrs. Dennington and other witnesses. He proved a good reputation for being a peaceable and law-abiding citizen and for truth and veracity, which was not assailed by the State.

The facts heretofore stated are from the standpoint of the appellant and are those upon which he bases his insistence that the jury was not authorized—as a matter of law—to reject his theory of self-defense.

If we correctly comprehend appellant's contention, it is that deceased began the difficulty when he threw the rock at appellant and into the car, followed by the breaking of the glass in the door behind the appellant—all with the idea, on the part of deceased, to injure appellant or to cause him to get out of the car in order that he might attack him with the stick and that the attack did follow when the appellant got out of the car. Thus, he insists, his self-defense was complete and perfect.

Now we turn to the State's evidence to see if issues of fact arise thereunder, contradictory of appellant's testimony.

The witness Mrs. J. R. Leath, who was working for deceased in the cafe and who was in the cafe at the time, testified:

"I did not see Romie Dennington (deceased) throw a rock in the car. I could see the car and see Romie Dennington at that time. He did not throw a rock."

Thus, appellant's testimony was directly contradicted in that...