Pickens v. State

• Citation: 218 S.W. 755
• Decision Date: 18 February 1920
• Docket Number: (No. 5499.)
• Parties: PICKENS v. STATE.
• Court: Texas Court of Criminal Appeals

218 S.W. 755

PICKENS v. STATE.

(No. 5499.)

Court of Criminal Appeals of Texas.

February 18, 1920.

Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

H. D. Pickens was convicted of murder, and he appeals. Reversed and remanded.

R. L. Williford and R. M. Edwards, both of Fairfield, for appellant.

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

MORROW, J.

The appellant shot and killed Wilhite, and is under conviction of murder with a sentence of confinement in the penitentiary for seven years. The issues submitted, in addition to murder, were self-defense on apparent danger and on threats of the deceased. The state's theory is that the appellant laid in wait and shot the deceased from ambush. In support of this theory circumstances were introduced. The deceased, at the time he was killed, was in the inclosure or farm of a witness by the name of Reese. The deceased had borrowed a wagon and horse from Reese, had on the morning of the homicide returned the horse and wagon, and a short time after he had left the home of Reese on horseback he was killed. The state introduced testimony showing that the road where the homicide took place was skirted by some trees and bushes, and that there were tracks of some person on the ground near the place where the body was found, and that there were also depressions in the leaves in some bushes, and some twigs cut or broken off the bushes at the point where, according to the state's theory, the appellant secreted himself when he fired the shot. A single-barrel shotgun was used, and ten buckshot struck the breast of the deceased, according to the state's theory coming from the side rather than from the immediate front. Reese was at a well drawing water, and after the deceased departed had drawn two buckets of water when he heard a gun fire, and, seeing the horse of the deceased loose in the field, he immediately went in the direction of where he heard the shot fired, and before reaching the point saw the appellant on foot, and as he approached nearer the point where the deceased was killed the appellant riding horseback met the witness, and there had a conversation with him which the state introduced as follows: The appellant said: "I have killed the old man. He ran his hand in his pocket, and said for me not to meet him any more." From Brumley the state elicited testimony that the appellant, subsequent to the homicide, had said, "I have got myself into trouble," and the witness replied, "That is what I have heard," and the appellant said, "Yes," he had killed the old man; that the deceased cursed him, threw his hand behind him, and said, "God damn you, I told you not to meet me again;" that appellant further said that he then began to untie his gun, which was tied to his saddle, and that he thought he would never get it untied.

The appellant advanced the proposition that upon the record thus presented the jury should have been instructed in substance that, the state having introduced the admissions of the appellant showing that he had killed deceased, the burden rested upon the state to disprove by the evidence the statement also introduced by it explaining the reason for the killing. That, where the declaration introduced by the state to prove its case contains exculpatory or mitigating statements, it is incumbent upon the court in a proper case upon request of the accused to instruct the jury in appropriate language that the statement is to be taken together, and that, if the exculpatory statements mitigate or excuse the homicide, the burden is upon the state to disprove them, is a legal principle which has received the sanction of this court in Pharr's Case, 7 Tex. App. 472, and in numerous subsequent instances, notably Pratt v. State, 50 Tex. Cr. R. 227, 96 S. W. 8; Combs v. State, 52 Tex. Cr. R. 616, 108 S. W. 649; Pratt v. State, 53 Tex. Cr. R. 281, 109 S. W. 138; Banks v. State, 56 Tex. Cr. R. 262, 119 S. W. 847.

This, however, is not an unfailing rule having application in all cases. In Jones' Case, 29 Tex. App. 21, 13 S. W. 990, 25 Am. St. Rep. 715, the court said:

"We do not wish to be understood as holding that in all cases where the admissions or confessions of a defendant are admitted in evidence against him that it is necessary to give such or a similar instruction to the jury. What we decide is that in this case, in which the criminating evidence consists almost entirely of defendant's admission that he killed the deceased, the instruction should have been given, in view of the fact that the exculpatory portion of defendant's statements about the homicide were not shown by the state's evidence to be untrue. We are of the opinion, however, that in all cases where admissions and confessions of a defendant are admitted in evidence against him, and such admissions or confessions contain exculpatory or mitigating statements, it would be proper and just to the defendant to instruct the jury as was requested in this case."

In Slade's Case, 29 Tex. App. 392, 16 S. W. 253, the ruling was that the charge mentioned was not required where the state used in addition to the confession other criminating evidence to substantially the same facts, and where the evidence introduced by the state was sufficiently efficient to establish the falsity of the exculpatory or mitigating facts accompanying the confession. On the subject the court, speaking through Judge Davidson, in the case of Casey v. State, 54 Tex. Cr. R. 587, 113 S. W. 536, disposed of the question as follows:

"There were no eyewitnesses to the transaction who testified on the trial except appellant. The state therefore introduced appellant's statement through some of the witnesses as to how the transaction occurred. Had the case closed at this point, appellant's contention that the court should have informed the jury that the state would be required to disprove his statements in order to obtain a conviction, under the authority of Jones v. State, 29 Tex. App. 20 [13 S. W. 990, 25 Am. St. Rep. 715], Pratt v. State, 50 Tex. Cr. R. 227, 96 S. W. 8, and Slade v. State, 29 Tex. App. 381 , would be correct. For a full discussion of the matter, in addition to the cases cited, see Combs v. State, 52 Tex. Cr. R. 613, 108 S. W. 649 and Pratt v. State, 53 Tex. Cr. R. 281, 109 S. W. 138. However, this charge may not be necessary in this case, inasmuch as the defendant took the stand in his own behalf and testified fully in regard to the facts of the case, and the case was not, therefore, one alone based upon defendant's confessions or statements. As the case is presented, therefore, we would not feel called upon to reverse the judgment for this omission in the charge."

In the instant case it cannot be said that the state relied upon the inculpatory evidence elicited in the manner related. The appellant's proximity to the deceased, in possession of the weapon at the time that Reese, the first witness, reached a point where he could be seen, was itself sufficient to connect the appellant with the homicide. The appellant testified in the case, declaring that he had killed the deceased, and describing in detail the incidents of the homicide and the matters leading up to it. He stated that some weeks before the homicide he had had occasion to go on the premises of the deceased, when the deceased, without provocation, drew his knife and seized the appellant by the wrist, using violently abusive language towards him, finally with an oath threatening to kill him if he caught him again in his pasture; that he had seen him again in a crowd, all of whom spoke to him except the deceased, and had later seen him in a pasture with a gun in his hands, when the deceased had refused to return his salute. He had been on the premises of Reese on the day preceding the homicide in search of cattle, and returned the following day upon a similar mission, and said:

"I opened the gate and got 15 or 20 steps inside when Wilhite came around the bend or curve in the road about 60 steps from the gate, and when he was discovered was approaching, meeting me. He hollered, `God damn you, I told you not to meet me any more.' I stopped my mare, and he made like he was getting his gun. I had my gun tied to my saddle, and untied it, and told him to hold up. He rode up to about 15 steps, and I jerked...