Reese v. State

• Citation: 249 S.W. 857
• Decision Date: 29 November 1922
• Docket Number: (No. 6806.)
• Parties: REESE v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

249 S.W. 857

REESE v. STATE.

(No. 6806.)

Court of Criminal Appeals of Texas.

November 29, 1922.

Rehearing Denied April 11, 1923.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Dan Reese was convicted of manslaughter, and he appeals. Affirmed.

Baskett & De Lee, of Dallas, for appellant,

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Upon trial for the murder of B. Davis appellant was convicted of manslaughter, and his punishment assessed at five years' confinement in the penitentiary.

Deceased, together with his wife, daughters, and son, was occupying apartments which belonged to appellant. Some little friction had arisen between the parties on account of the failure to pay rent. On the night of the homicide, while deceased was away from the premises, his daughters claimed that appellant was on the outside of the house looking at them through the window. Upon their father's return this circumstance was reported to him. A few minutes thereafter appellant came into the house and was accosted by deceased, who demanded of him why he had been watching his wife and daughters through the window. This appellant denied. The state's testimony shows that deceased was unarmed, and that appellant drew his pistol and shot him without further provocation. Appellant was considerably bruised and beaten about the head and face. His testimony and that of his supporting witnesses was to the effect that deceased came out of the room armed with a pistol, and, upon appellant's denial that he had been watching the young ladies through the window, deceased struck him in the face and about the head with the pistol, and attempted to shoot him, whereupon appellant drew his pistol and fired in self-defense. Evidence was also introduced by appellant tending to show that the party whom the young ladies thought was he was in fact another person who had come to the house and made inquiry as to where some person in the neighborhood lived, and after getting the information had walked down the side of the building past the open window where the daughters claimed to have seen the appellant look in. The state undertook to account for the bruises upon appellant by showing that a son of deceased reached the parties during the shooting and wrenched appellant's pistol from his hand and inflicted the wounds upon him with it. We deem a further statement of the facts unnecessary. Upon the defensive issue suggested by the foregoing statement the evidence of the state and the appellant was directly contrary. It was a matter solely for the determination of the jury as to what were the true facts, and we are unauthorized to disturb their findings in that regard.

By the record before us only two questions are presented for review. Appellant filed a motion to quash the special venire, in which he avers that what is known as the "jury wheel law" was in effect in the county in which appellant was tried; that said law required the names of all qualified jurors in the county to be placed in the wheel from which jurors or special venires were to be drawn; that the district judge instructed the officers whose duty it was to place the names of prospective jurors in the wheel to omit therefrom all of those who, in their judgment, would not make good jurors; that said instruction was followed, and by reason of this possibly 1,000 or 1,500 qualified jurors of Eastland county had been omitted from the wheel. This averment raised an issue dehors the record. Appellant tendered evidence upon the issue thus presented, and the matter is attempted to be brought forward for our consideration by bill of exception. For two reasons the question is not properly before us for review: First, the term of court at which the case was tried adjourned on October 1, 1921. Appellant was allowed 90 days after adjournment in which to file statement of facts and bills of exception. The bill in question was filed within the time extension granted by the court, but not before adjournment. It has been uniformly held since Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, that a statement of facts or bill of exception presenting matters outside the record must be filed before adjournment of the trial term of court, and that the extension applies only to statement of facts as to the guilt or innocence of accused and to bills of exception taken to matters arising during the trial. Section 598, p. 307, Branch's Ann. P. C.; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Parroccini v. State, 90 Tex. Cr. R. 320, 234 S. W. 671; Jurado v. State, 91 Tex. Cr. R. 490, 239 S. W. 617; Nothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. 215; Crowley v. State (Tex. Cr. App.) 242 S. W. 472. Second, the evidence brought forward upon the question at issue, and incorporated as a part of the bill of exception, consists of 11 pages of questions and answers. No effort appears to have been made to condense it into a narrative form. We have frequently declined to consider statement of facts or bills of exception when appearing in the record in the condition we find this one. Section 601, p. 309, Branch's Ann. P. C.; Carter v. State, 90 Tex. Cr. R. 248, 234 S. W. 535; Jetty v. State, 90 Tex. Cr. R. 346, 235 S. W. 589; Rylee v. State, 90 Tex. Cr. R. 482, 236 S. W. 744; McDaniel v. State, 90 Tex. Cr. R. 636, 237 S. W. 292; Watson v. State, 90 Tex. Cr. R. 576, 237 S. W. 298; Cottrell v. State, 91 Tex. Cr. R. 131, 237 S. W. 928; Hornsby v. State, 91 Tex. Cr. R. 166, 237 S. W. 940; Parker v. State, 91 Tex. Cr. R. 168, 238 S. W. 943; Jacobs v. State (Tex. Cr. App.) 242 S. W. 232; Young v. State (Tex. Cr. App.) 243 S. W. 472.

Among other abstract statements of law contained in the court's charge is the following:

"Homicide is justifiable in the protection of the person against any unlawful and violent attack, but in such case all other means must be resorted to for the prevention of injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack."

Exception was taken by appellant to this isolated clause in the charge as being a limitation on his right of self-defense, and not justified under the facts. Upon this proposition appellant cites us to many cases decided by our own court. We observe that all of the decisions were rendered prior to the amendment in 1913 of what is now article 743, C. C. P. We have been cited to no cases rendered subsequent to that time. It may be conceded that the charge...