Richardson v. State

• Decision Date: 11 January 1922
• Docket Number: (No. 6492.)
• Citation: 239 S.W. 218
• Parties: RICHARDSON v. STATE.
• Court: Texas Court of Criminal Appeals

239 S.W. 218

RICHARDSON v. STATE.

(No. 6492.)

Court of Criminal Appeals of Texas.

January 11, 1922.

Rehearing Granted March 22, 1922.

Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.

Frank Richardson was convicted of murder, and he appeals. Reversed and remanded.

Gentry & Gentry, of Tyler, and C. L. Hubbard and Stanford, Sanders & West, all of Canton, for appellant.

Butler, Price & Maynor, of Tyler, and R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Appellant was convicted of murder; punishment fixed at confinement in the penitentiary for a period of 25 years.

Jones Richardson was shot and killed by the appellant. They were brothers, both being of mature years. They were, at the time, in the house upon the farm known as the "old Richardson home place." It had been owned by appellant's father and mother; had been their home prior to his death and her home thereafter. Appellant also resided there for 12 years immediately preceding the homicide. His mother, for a short time, had been away, leaving her personal belongings. The daughter and son-in-law of appellant also resided on the farm. They, however, were moving away from it, and appellant was in the act of moving to the city of Tyler, where he was in business. The deceased resided with his family in the state of Oklahoma and had done so for about 12 years.

The appellant had purchased the interest in the farm of all the children save the deceased, and his mother had made to him a deed to her interest. Shortly preceding the homicide, the deceased came to the vicinity, and, acting on behalf of his mother and in her name, brought against the appellant a forcible entry and detainer suit for the possession of the farm, and upon the trial the judgment was in her favor, and from it appellant appealed.

Evidence of threats against the deceased and conduct indicating ill feeling and expressions of such sentiments was introduced.

Appellant's mother testified that she made the deed to the appellant without understanding the nature of the document that she executed.

Appellant denied the threats and expressions of bad feeling, though he did not think the deceased had treated him right. He explained his possession of the pistol on the occasion of the homicide by stating that he had had difficulty with another person and was expecting trouble with him; that he had no knowledge of his brother being at the place when he went there; that, on arrival, he learned from his mother that his brother was there, and he walked up and said: "Hello, Jones; what are you doing here? and he said, "I will show you," and jumped up and got his gun out of his grip and cocked it; and the appellant said to him, three or four times, "Take it out of my face." He then retreated a couple of steps. The deceased advanced. His mother sought to interfere. Appellant said, "He must take that gun out of my face." That Jones said to his mother: "Step aside! I am going to shoot." Whereupon the appellant shot. Appellant fired one shot, which killed the deceased.

There was sharp conflict in the testimony touching the possession of the pistol by the deceased at the time of the homicide.

Complaint is made in bill No. 2 of the receipt of evidence to the effect that the appellant stated that he had appealed the forcible entry and detainer case. In qualifying the bill, the court said that the testimony given by the witnesses was this:

"I heard defendant say that he had appealed the case that his mother had won against him, and that he didn't see what Jones, his brother, was doing there on the place."

This testimony, coming, as it did, shortly preceding the homicide, related such a declaration by the appellant as was, in our opinion, available to the state upon the issue of motive. The declaration of the appellant was competent and relevant to show his state of mind towards the deceased. McKinney v. State, 8 Tex. App. 627; Branch's Ann. Tex. Penal Code, § 1881, and cases listed.

A witness who had given material testimony in favor of the appellant was asked, on cross-examination, if he had not stated with reference to the deceased: "The son of a bitch is dead in hell, where he ought to be." Upon the denial by the witness, proof was made for the purpose of impeachment that he did make the statement. This testimony, in our opinion, was admissible under the rule which permits the opposing party to break the force of the testimony of an adverse witness by proof of his bias or prejudice. Watts v. State, 18 Tex. App. 384; Brownlee v. State, 48 Tex. Cr. R. 410, 87 S. W. 1153; Gelber v. State, 56 Tex. Cr. R. 462, 120 S. W. 863; Tow v. State, 22 Tex. App. 184, 2 S. W. 582; Branch's Ann. Tex. Penal Code, § 163, and cases listed.

While upon the witness stand, state's counsel directed to the appellant this question:

"Isn't it true that some five or six years ago, in Parker county, you were tried, indicted, and convicted of the offense of bigamy, and sent to the penitentiary for that offense?"

Objection was made, as stated in the bill, upon the ground that, before the witness was placed upon the stand, his counsel asked the court to instruct the state's counsel to refrain from making inquiry for the reason that the conviction had taken place in the year 1912. The court required an answer, which was: "Yes, sir: that is correct." In approving the bill, the court disallows the part thereof stating that he was requested to prevent the inquiry on account of the date of the offense. He calls attention to the fact in his qualification that the question did not indicate that the inquiry related to a remote offense, and adds that it was on redirect examination; that it developed that the conviction took place in October, 1912; that, prior to this development on redirect examination, the court had no information as to the date other than indicated by the question. The propriety of making proof of the conviction of other felonies to affect the credibility of the accused when testifying as a witness is well established. Lights v. State, 21 Tex. App. 313. 17 S. W. 428, and other cases listed in Branch's Ann. Tex. Penal Code, § 167. We are not advised of any rule that would have excluded the testimony as too remote even if there had been a request to do so. Instances are available in which such testimony has been received over the objection that it was too remote when the prior offense had occurred at a time more distant than in the instant case. Scoville v. State (Tex. Cr. App.) 77 S. W. 792. Even, however, if the time of the prior offense was too remote to render proof of it available to the state, the matter, as presented, does not authorize a reversal upon that ground. The question, as framed, fixing the time at five or six years, gave no indication that it called for testimony too remote (Davis v. State, 52 Tex. Cr. R. 630, 108 S. W. 667), and the bill, as qualified, shows that the trial court had no knowledge that the conviction had occurred prior to the time indicated by the question. After the date was revealed upon redirect examination, no request was made to exclude the testimony.

Three special charges bearing upon the possession of property were requested. One of them reads thus:

"You are charged that in law the defendant was in possession of the home where the killing occurred and that he had a right there, and that the deceased did not have the right to forcibly eject him; and if you find from the evidence that when the defendant returned to the place of the homicide the deceased undertook to eject him, then the defendant had the right, under the law, to defend his possession of the property, and, if you find from the evidence that he shot and killed the deceased in defense of his home, you will acquit the defendant, or, if you have a reasonable doubt as to this, you will acquit."

Another charge in substantially the same language was given, and the third was in these words:

"You are further charged that the defendant had a legal right to the possession of the premises where the homicide occurred, and that he had the further legal right to inquire into and demand an explanation of the presence of any other person whom he might find in possession of or on said premises."

The third special charge was given, the others were refused, and the refusal is complained of. We do not regard the complaint as meritorious.

Touching the homicide in defense of property, our statute is as follows:

"Homicide is justifiable also in the protection of the person or property against any other unlawful and violent attack besides those mentioned in the preceding article, and, in such cases, all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack; and any person interfering in such case in behalf of the party about to be injured is not justifiable in killing the aggressor, unless the life or person of the injured party is in peril by reason of such attack upon his property." Penal Code, art. 1107.

Also, the possession must be of corporeal property and not a mere right, and the possession must be actual and not merely constructive. The possession must be legal, though the right to the property may not be in the possessor. Every effort in his power must have been made by the possessor to repeal the aggression before he would be justified in the killing.

We have given above a synopsis of the testimony as we comprehend it. That pointed out by the appellant as raising the issue is that of appellant stating his age, 44 years of age; that the deceased was younger; that appellant and his family had resided there for a number of years; that his mother had also lived there; that he had bought from or contracted for all the interest of all the heirs except the deceased and had received the deed to the land from his mother in 1915, and had claimed the place since that time;...