Robinson v. State

• Decision Date: 25 June 1924
• Docket Number: (No. 8688.)
• Citation: 274 S.W. 137
• Parties: ROBINSON v. STATE.
• Court: Texas Court of Criminal Appeals

274 S.W. 137

ROBINSON v. STATE.

(No. 8688.)

Court of Criminal Appeals of Texas.

June 25, 1924.

Rehearing Denied June 17, 1925.

Appeal from District Court, Young County; Walter F. Schenck, Judge.

Jim Robinson was convicted of murder, and he appeals. Affirmed.

S. A. Penix, of Graham, Penix, Miller & Perkins, of Mineral Wells, Sam Shadle, of Weatherford, and Davenport, Cummings & Thornton, of Wichita Falls, for appellant.

James V. Allred, Dist. Atty., of Wichita Falls, John B. Rhea, Co. Atty., and Marshall & King, all of Graham, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Young county of murder, and his punishment fixed at 25 years in the penitentiary.

The indictment was attacked by motion to quash, based on the ground that the court, in which it was returned, was created as an emergency court, and for the specific term of two years; that there was nothing in the bill creating the court which gave it power to impanel a grand jury, and hence the exercise of such power was ultra vires and an indictment returned by a grand jury impaneled by said court was a nullity. We find nothing in the act which brought said court into existence (see chapter 76, Acts Regular Session of 38th Legislature) which bears out this contention. Section 2 of said act is as follows:

"The jurisdiction of each of said new district courts of said Ninety-Second Judicial District shall extend throughout that district. The jurisdiction of said new district court of Stephens county shall extend to and include all proceedings and matters of which district courts of this state have or may be given jurisdiction by the Constitution or by the law of this state. The jurisdiction of said new district court of Young county shall extend to and include all civil and all criminal cases, proceedings and matters of which district courts of this state have or may be given jurisdiction by the Constitution or by the laws of this state."

There can be no question but that, under our laws and Constitution, district courts alone have the power to call into existence grand juries by rules prescribed by statute. In no other way can felony indictments be originated. The plain statements in the section of the law above quoted provide that the jurisdiction of said new district court of Young county shall extend to all proceedings and matters of which district courts of this state have jurisdiction. That this comprehends the exercise of the power of a district court in the matter of impaneling a grand jury with all of its attendant and subsequent functions and consequences seems too plain to call for analysis or further discussion.

We note the other matters complained of, in the order in which they are presented in the able brief filed on behalf of appellant. It seems clear that a special charge stating that if deceased was armed with a shotgun and was advancing, or about to advance, etc., the law presumes he intended to kill appellant or do him serious bodily injury, does not state the law as set out in article 1106, P. C. Said article is well understood, and has been discussed in many cases and simply provides that when a homicide takes place to prevent murder, etc., if the weapon used is such as would have been calculated to produce that result, the law presumes that he intended to kill, etc. That one who advances toward another, or who is merely about to advance, may be shot down on the presumption that he intended to murder or maim the party toward whom he was advancing solely because he had a shotgun, is not the law, and this conclusion seems so plain that we think argument not necessary to demonstrate the unsoundness of the contention. None of the authorities cited, and none known to this court, would justify such charge. What is meant by "about to advance?" What if the advancing be provoked, or be evidently without intent to do bodily harm? Said special charge ignored the many conditions under which one may advance upon another, though in possession of a gun, without forfeiting his right to life, and its refusal was not error.

A special charge sought to have the jury told that if appellant fired the first shot in self-defense, then he had the right to shoot as long as it appeared to him he was in danger of life or serious bodily injury. Under some facts such a charge might be appropriate, but not under those in this record. Deceased was shot but once, and the witnesses are in accord, both for the state and the defense, that his wound was inflicted by the first shot fired by appellant. The eyewitness, who testifies for the state, swears that after appellant shot deceased he ran some distance and then fired again, but the witness testified affirmatively that he saw the dirt fly where this bullet struck some distance from deceased. Appellant's brother, who was an eyewitness, swore that appellant shot the deceased in the side the first shot, and that he then ran, and when he reached a point about 150 yards away, he fired again. Appellant also swore that he shot but twice, and was only about three feet from deceased when he fired the first shot, and that he was about 150 yards away when he fired the second time. It thus appears that there is no suggestion of a possibility of the deceased being struck by the second shot; it also seems without dispute that he fired a number of shots at appellant after the first shot was fired by the latter, and that appellant did not fire the last shot, as he himself says, "till I got plumb out of reach of the gun." We are of opinion that it was not error to refuse to give said charge. The authorities cited by appellant present facts on which, because of retreat of the deceased, or of some altered attitude of the parties after the first shot was fired, there might be danger of a verdict adverse to appellant, if arrived at by considering his right to kill when the last shot was fired, a contingency which was impossible to have been arrived at, or to arise under the facts in this case.

A special charge which sought to have the jury told that if appellant met deceased and the latter drew his gun on the defendant, or made any other demonstration by words or acts, or both, and the defendant then shot deceased believing that his life was in danger, etc., does not present a correct or applicable legal statement, and the court below was justified in the refusal of said special charge No. 4. "Made any demonstration" is not a phrase which has received judicial interpretation, and such an instruction would be erroneous and would give the jury no legal standard by which they may judge of the acts of the deceased which would justify a homicide.

Special charge No. 5 is on the weight of the evidence and suggests matters which have no support in testimony in this case, while grouping facts which seem to raise the issue of provoking the difficulty, it wholly ignores such theory, and for these reasons we would think it properly refused. There is nothing in the testimony of either the state or the appellant which suggests an abandonment of the difficulty on the part of appellant. The two special charges just under discussion are open to the objection relative to grouping a part of the facts in a special charge, as evidenced in section 1944 of Mr. Branch's Annotated P. C. which seems supported by the authorities there cited.

Special charge No. 6 was covered by the main charge, which in our opinion affirmatively submitted the law of self-defense based on acts or acts coupled with words of the deceased, which created in the mind of appellant a reasonable apprehension that he was in danger of losing his life or suffering serious bodily harm. The enumeration of a number of supposed acts of the deceased in a charge which seeks to have the jury told that if deceased did these things, etc., is not only open to the objection to grouping facts just mentioned, but adds no force to an affirmative presentation of the defensive theory.

Special charge No. 7, in so far as it presented a proposition of law pertinent to the facts in this case, was covered by the main charge. We find nothing in any authority cited by appellant in support of his contention that this charge should have been given, which remotely sheds light on the necessity, under the facts of this case, that the jury must take into consideration the relative strength of the parties. The combat reflected by the facts was entirely one with deadly weapons, and no attempt or threatened resort to physical violence otherwise appears.

In the preliminary part of the main charge on manslaughter, the court told the jury in substance that if they found that the shooting was not done in defense of himself against an unlawful attack, etc., but that the killing was under the immediate influence of sudden passion, etc., they should find appellant guilty of manslaughter. There is an exception to the use of the word "unlawful" in this connection, but to our minds it presents no error. The court was charging on manslaughter, and the use of said word was in no affirmative connection, and we think it impossible to have injuriously affected the case. Nor are we able to agree to the general exception to the main charge based on the proposition that it failed to submit affirmatively a charge upon the defensive theory.

By bills of exceptions Nos. 11 and 12 are presented appellant's criticisms of the submission of the law of provoking the difficulty. We are not in agreement with the contention, either that the charge was argumentative, or on the weight of the evidence, or that it was not called for by the facts. Of course if not called for by the facts, it would necessarily be an unwarranted limitation on the right of self-defense. We note the facts in determining whether said charge was raised by the testimony, and are of opinion that it was clearly called for by the state's testimony,...