Regittano v. State
Decision Date | 08 February 1922 |
Docket Number | (No. 6391.) |
Citation | 257 S.W. 906 |
Parties | REGITTANO v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
William Regittano was convicted of manslaughter, and he appeals. Affirmed.
Meek & Kahn and John M. Cobb, all of Houston, and Vaughan & Abney, of Hillsboro, for appellant.
E. T. Branch, Dist. Atty., of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.
Appellant was charged with murder and convicted of manslaughter; punishment fixed at confinement in the penitentiary for five years. He shot and killed Harriet Jenkins. The deceased was a woman of negro blood, but apparently white. She was the paramour of the appellant. The two were riding in an automobile at nighttime.
This is appellant's version of the homicide: She was driving the car and stopped it at about six miles out. Appellant got out to crank it. She told him that she wanted $200 and used abusive language to him. He had more than that amount of money on his person, but declined to give it to her, stating that he needed it to use in connection with his business. He had been unable to crank the car and was standing near it, talking to her. She shot him in the neck. He said:
It was shown that appellant was found in the road in a dazed condition, badly shot; that, through the aid of others, the finally reached a sanitarium and was treated for the wound.
The doctor said:
A number of witnesses testified in substance that it would have been impossible for the wound to have been self-inflicted without leaving powder stains upon the skin, and that there were none found.
The body of the deceased and the car in which she and appellant had been riding were found. The only explanation of the incident is that given by the appellant.
The court, in addition to the charge on murder and manslaughter, instructed upon the law of self-defense. The charge on self-defense was in these words:
This charge is complained of because, in effect, it required the jury to believe appellant's defensive theory as a predicate for acquittal, whereas he was entitled to an acquittal if there existed in the minds of the jury a reasonable doubt as to whether his defensive theory was true. This complaint is met by the state with the proposition that the court, at the close of the charge, having instructed upon the law of reasonable doubt in the language of the statute, no error was committed in failing to give such an instruction in connection with the charge presenting appellant's affirmative theory of self-defense.
Upon this subject, it seems to the writer that the authorities are not harmonious. Powell's Case, 28 Tex. App. 398, 13 S. W. 599, apparently supports the state's theory, while Johnson's Case, 29 Tex. App. 150, 15 S. W. 647, apparently supports the position of the appellant. These two cases were written by the same judge, and it may be that in the respective records there were facts differentiating them, which in the report of the cases are not revealed. Among the cases in line with Johnson's Case, supra, are Bennett v. State, 30 Tex. App. 341, 17 S. W. 545; Rutherford v. State, 48 Tex. Cr. R. 432, 88 S. W. 810; Bird v. State, 49 Tex. Cr. R. 96, 90 S. W. 651, 122 Am. St. Rep. 803; Moody v. State, 52 Tex. Cr. R. 232, 105 S. W. 1127; Henderson v. State, 51 Tex. Cr. R. 194, 101 S. W. 245; Stewart v. State, 51 Tex. Cr. R. 223, 101 S. W. 800; Harris v. State, 55 Tex. Cr. R. 479, 117 S. W. 839; Maloney v. State, 57 Tex. Cr. R. 435, 125 S. W. 36; Castro v. State, 66 Tex. Cr. R. 282, 146 S. W. 553; Vernon's Texas Crim. Statutes, vol. 2, p. 683, subd. 18.
Mr. Branch, in annotating the Penal Code, states the rule, as deduced from numerous decisions, in these words:
"A charge is error which requires the jury to `find' or `believe' the defensive theory before they can acquit, if reasonable doubt is not also charged in immediate connection with the same paragraph." Branch's Ann. Tex. Penal Code, § 11, p. 5; Smith v. State, 45 Tex. Cr. R. 251, 76 S. W. 434; Bennett v. State, 30 Tex. App. 341, 17 S. W. 545.
Upon this question, this court, through Judge Willson, said:
Johnson v. State, 29 Tex. App. 150, 15 S. W. 647.
In the instant case, it is the state's burden to show that the homicide was committed by the appellant and that it was unlawful. If the jury had a reasonable doubt as to either, it was their duty to acquit, and this without reference to whether they credited the appellant's defensive theory or not. The statute on the presumption of innocence and reasonable doubt operates without reference as to whether appellant presents any defensive theory. The statute says:
"The defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence; and, in case of reasonable doubt as to his guilt, he is entitled to be acquitted." Code of Crim. Proc., art. 785.
See, also, Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967; Vernon's Texas Crim. Statutes, vol. 2, p. 678, subd. 11, and cases listed.
The law requiring a charge on the presumption of innocence and reasonable doubt is generally satisfied when the doctrine is applied by a charge referring to the whole case; that is, referring to the general issue of guilty or not guilty. Vernon's Texas Crim. Statutes, vol. 2, p. 684, subd. 19, and cases cited. It has been held that it is not required that it shall be charged in every case with regard to each affirmative independent offense. McCall v. State, 14 Tex. App. 353; Edwards v. State, 58 Tex. Cr. R. 342, 125 S. W. 894. It is believed, however, that where, as in the instant case, the defensive theory is an affirmative one — that is, where the connection of the accused with the homicide is conceded and justified by affirmative testimony given by the accused — when the matter is properly presented in the trial court, there should be embodied in the charge submitting his defense the information to the jury that, if they believe the affirmative defensive facts or have a reasonable doubt of their truth, an acquittal should result. This we understand to be the rule applied in Johnson's Case, supra, and followed in many others to which we have adverted. Moreover, we believe it to be a correct and sound rule, when considered in connection with our statutes upon the law of homicide and the statute concerning the presumption of...
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