Pratt v. State

• Decision Date: 25 June 1906
• Citation: 96 S.W. 8
• Parties: PRATT v. STATE.
• Court: Texas Court of Criminal Appeals

96 S.W. 8

PRATT v. STATE.

Court of Criminal Appeals of Texas.

June 25, 1906.

Appeal from Hopkins County Court; R. L. Porter, Judge.

W. B. Pratt was convicted of murder in the second degree, and appeals. Reversed and remanded.

Paterson & Sharp, Wood & Melson, S. H. Russell, and Templeton, Crosby & Dinsmore, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for murder in the second degree; five years being fixed as the punishment. The trial was had in Hopkins county on change of venue from Delta county. There are a great number of errors assigned, many of which we deem unnecessary to review.

Appellant proposed to prove by Mrs. Sue Pratt that, immediately after the shooting, he came to the house of witness, a short distance from the scene of the tragedy, and a short conversation occurred between them in regard to the homicide. Her testimony was excluded upon objection urged by the state that she was not the first party whom appellant met and told his story of the shooting, and that his statement was self-serving and was not res gestæ. These were grounds of objection urged by the state. The bill of exceptions puts the conversation as occurring "immediately" after the killing. Upon another trial, the testimony of this witness should be permitted to go to the jury, if the question arises then as now. The testimony of several witnesses was introduced in regard to the statements of appellant concerning the homicide, some of which were res gestæ, and some were introduced presumably because thought to be incriminating. Some of these conversations occurred very shortly after the homicide, and some reached as far away nearly as 24 hours. We see no reason why the evidence of some of these witnesses should be excluded and others admitted. Her testimony is to some extent very much as that of the witness Medlin, whose testimony was permitted to go to the jury.

An exception was reserved to the court's charge on threats; and another charge requested by appellant was refused. The first portion of the charge in regard to this phase of the testimony was in the abstract, and did not apply the law to the facts. Then the court continues as follows: "In order to justify the defendant in taking the life of the deceased it must appear that, at the time of the homicide, the deceased did some act which was reasonably calculated, in view of all the circumstances to produce in the mind of the defendant the belief that the deceased was then about to execute the threats so made." It is contended (1) that the charge is in the abstract and does not apply the law to the facts; and (2) that it fails to charge the jury, if the defendant did some act at the time of the homicide which, taken in connection with all the facts and circumstances and environments of the of the case, was reasonably calculated, judging from the standpoint of the defendant, to produce in his mind the belief that deceased was about to execute his threats, the jury should then acquit. The charge is negative, and does not give the statute as we understand it should be given. The law of threats connected with the act of demonstration manifests an intent to carry into execution the threat is a statutory ground for self-defense, and should be given in an affirmative manner to the extent that defendant may have the benefit of the law as applied to the facts covering this peculiar phase of the case when the facts make that condition. If appellant believed at the time that his life was in danger, that the deceased was approaching him for the purpose of executing his threat, that he had the physical ability to do so, and that he had ordered him several times peremptorily to desist and not approach him, and deceased was still approaching him in an infuriated condition, and if these matters reasonably appeared to defendant to put his life in danger, or his body open to serious bodily injury, he had the legal right to shoot without legal blame. A special charge was requested calling the court's attention to the deficiency in the general charge, and it should have been given or a similar charge, applying the law to the facts in an affirmative manner. While we would hardly feel called upon to reverse for giving one and refusing the other charge, yet upon another trial the special charge should be given.

The court gave the following charge: "You are further instructed that if one whose mind is cool and calm, although smarting under indignity previously inflicted upon him deliberately plans to take the life of another, and in pursuance of such determination meets such person and kills him, he would be guilty of murder, no matter if at such meeting his life became in danger. Therefore, if the jury find from the evidence that the deceased, C. M. Lyde, threatened to kill the defendant, W. B. Pratt, or do him serious bodily injury, or in any other way mistreated him; and if you further find that because of such conduct the defendant deliberately determined to kill Lyde, and that when he formed such determination his mind was cool and calm, and in a condition to understand and comprehend the nature of the act and its probable consequences; and if you further find that in pursuance of such determination, if any, the defendant, W. B. Pratt, on learning that Lyde was approaching the storehouse, armed himself; and if you further find that when Lyde arrived where defendant was, the defendant shot and killed Lyde, in pursuance of a determination previously formed in his mind, if any, then he would be guilty of murder." Exception was reserved to this charge upon the theory that it cut appellant off from all hope of the right of self-defense. This charge should not have been given in the manner it was given. It does not debar the accused of the right of self-defense, that he may have coolly and calmly made up his mind to kill another, if the other at the time of the meeting attacked him, and did some act manifesting an intention to take the life of the slayer or to do him serious bodily injury. A party may coolly make up his mind to kill another, and yet if, upon meeting the party whom he has determined to kill, that party makes an assault upon him which justifies him in killing in self-defense, the fact that the accused had formerly made up his mind to do the killing would not eliminate his the right of self-defense, that he may have the extent of authorizing the jury to find appellant guilty of murder simply because he had made up his mind to kill deceased, and the further fact that he did kill him. If there was no issue of self-defense or of manslaughter in the case, perhaps this might not have been harmful. Of course, if a party makes up his mind coolly and deliberately to kill another, and does kill, when the other party is not doing anything, it would be murder. It is not correct, however, to give such a charge to the jury where the facts raise the issue of self-defense, unless the charge as given is limited by the law of self-defense. In other words, this charge is wrong because, as given, it authorized a conviction of appellant independent and outside of his theory of self-defense, and ignores the testimony bearing upon that issue.

In this connection a charge along the same line was given in regard to the law of manslaughter. It was erroneous to give this charge, and upon another trial it should not be given.

The testimony of the witnesses Blackwell and Tymes was admitted for the purpose of contradicting the witness Medlin. The testimony of Archie Shumate was admitted for the purpose of contradicting J. W. Medlin and Mrs. John Pratt. The testimony of Carter Anderson was also admitted in rebuttal for the purpose of contradicting the witness Bolin. The court, in his charge to the jury, limited the testimony of this witness to impeachment. Without going into the accuracy of these charges in properly presenting that issue to the jury, upon another trial we...