Pinkerton v. State

• Decision Date: 21 March 1923
• Docket Number: (No. 7119.)
• Citation: 249 S.W. 1066
• Parties: PINKERTON et al. v. STATE.
• Court: Texas Court of Criminal Appeals

249 S.W. 1066

PINKERTON et al. v. STATE.

(No. 7119.)

Court of Criminal Appeals of Texas.

March 21, 1923.

Appeal from District Court, Erath County; J. B. Keith, Judge.

Frank Pinkerton and others were convicted of murder, and they appeal. Affirmed.

Mack Taylor, Pat Pittman, and Oxford & Johnson, all of Stephenville, for appellants.

M. L. Arrington, Dist. Atty., of Granbury, Chandler & Pannill, of Stephenville, and R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Appellants were jointly indicted for the murder of Newman Bostick, at a former trial Monday applied for and was granted a severance. Bill and Frank Pinkerton were tried jointly. All were convicted, and upon appeal both cases were reversed. The opinion in the Pinkerton Case is reported in 89 Tex. Cr. R. 657, 232 S. W. 827, and Monday's in 90 Tex. Cr. R. 8, 232 S. W. 831. After reversal Monday withdrew his request for severance, and all three codefendants were retried jointly. Bill Pinkerton was allotted 35 years in the penitentiary, and Frank Pinkerton and Monday 30 years each.

The evidence in the record now before us is substantially the same as on the former appeals. It is set out at some length in the other opinions, and will not be repeated unless necessary to the discussion of some bill of exception. No complaint is brought forward at the admission or rejection of evidence. The errors alleged relate solely to the charges given or refused, and a complaint that the punishments assessed are grossly excessive under the facts, evidencing prejudice on the jury's part.

After defining manslaughter and what is meant by the term "under the influence of sudden passion," the court gave the following charge:

"The acts must be directly caused by the passion arising out of the provocation; it is not enough that the mind is merely agitated from passion arising from some other provocation or a provocation given by some other person than the party killed, or persons acting with or aiding or encouraging him in the difficulty."

Exception was taken to the paragraph of the charge above quoted as it was originally written, and in response thereto the court added the words which are italicized. Objection was then made to it in the following language:

"Because said paragraph is not applicable to the facts of this case, and imposes undue burdens and limitations on the defendants and is entirely too restrictive when applied to the facts of this case."

The exception was not elaborated, and in no way was it undertaken to point out to the trial court in what particular the paragraph in question was not applicable to the facts, nor in what way it imposed undue burdens or limitations on appellants, nor in what manner it was deemed by them too restrictive. It is urged by appellants in their brief and argument before this court that the words italicized prevented the jury from taking into consideration the acts of deceased's brother who may have been acting with him at the time of the killing. In qualifying the bill the learned trial judge says by the language complained of he intended to instruct the jury, and thinks he did so, to the effect that a provocation given by deceased or his brother acting with him could have caused passion bringing the case within the definition of manslaughter. We are unable to agree to the construction given the paragraph by appellants, but are in accord with the view expressed by the trial court. We think, when fairly construed, the charge means "that it is not enough that the mind is agitated by passion arising from a provocation given by some person other than the party killed, or by some person other than those acting with the party killed."

The state meets the criticism with the proposition that the objection is too general, and did not point out the specific error complained of, even though the charge itself might in some respect be objectionable. We are inclined to agree with this proposition. Article 735, Vernon's Ann. Code Cr. Proc. 1916, requires that the accused "shall present his objection in writing, distinctly specifying each ground of objection." In Gill v. State, 84 Tex. Cr. R. 531, 208 S. W. 926, we said:

"No form of objection is prescribed, and, in the nature of the case, none can be laid down; but the charge complained of and the objection made must be considered together, and, if it is sufficiently definite to make reasonably apparent to the trial judge the faults complained of, it will be regarded on appeal as a substantial compliance with the requirements of the statute. The statute demanding that the objection shall be `distinctly specified' is not ordinarily met by a general objection."

To the same effect, see McDonald v. State, 77 Tex. Cr. R. 612, 179 S. W. 880; Rodgers v. State (Tex. Cr. App.) 245 S. W. 697; Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790; Walker v. State, 89 Tex. Cr. R. 76, 232 S. W. 527.

The court charged upon "provoking the difficulty." Exception was reserved because appellants contend that issue was not raised by the testimony. The facts are practically identical with those presented on the former appeal, and the same contention was made at that time. The issue was not discussed in the opinion in the Pinkerton Case, but it was expressly held in Monday's Case that the issue of provoking the difficulty was raised. With such announcement before him, the learned trial judge would not have been warranted in witholding such issue from the jury upon identical facts in the instant trial. We think the evidence fairly raised the issue. We do not deem it necessary to review the question again. Betts v. State, 71 Tex. Cr. R. 204, 159 S. W. 1069; Manley v. State, 69 Tex. Cr. R. 502, 154 S. W. 1008.

The charge on provoking the difficulty is practically the same as was given in Woodward v. State, 54 Tex. Cr. R. 86, 111 S. W. 941. Exception was taken to said charge —

"because the same nowhere points out to the jury the wrongful acts, conduct, or language of these defendants which would in law compromit their rights of self-defense, and because said charge nowhere groups the facts on which the rights of these defendants to complete self-defense should be abridged and limited."

There are expressions in some early opinions which would indicate that the trial judge should in his charge point out or group the facts upon which "provoking the difficulty" may be predicated. See Morgan v. State, 34 Tex. Cr. R. 226, 29 S. W. 1092; Carter v. State, 37 Tex. Cr. R. 403, 35 S. W. 378; Mozee v. State (Tex. Cr. App.) 51 S. W. 250. An...