Seeley v. State

• Decision Date: 22 May 1901
• Citation: 63 S.W. 309
• Parties: SEELEY v. STATE.
• Court: Texas Court of Criminal Appeals

63 S.W. 309

SEELEY v. STATE.

Court of Criminal Appeals of Texas.

May 22, 1901.

Appeal from district court, El Paso county; A. M. Walthall, Judge.

Fayette Seeley was convicted of murder in the second degree, and he appeals. Reversed.

Edwards & Edwards and Seymour Thurmond, for appellant. W. A. H. Miller and Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 15 years' confinement in the penitentiary. Exception was reserved to the court's charge on self-defense, which portion of the charge is as follows: "If from the evidence you believe that defendant killed said Robert L. Hall, but further believe that at the time of so doing deceased had made an attack on him, which from the manner and character of it, and the relative strength of the parties, and defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, defendant killed deceased, then you should acquit. And if deceased was armed at the time he was killed, and was making such attack on defendant, and if the weapon used by him, and the manner of its use, was such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon defendant." This charge makes defendant's right of self-defense depend upon an actual attack then made on him by deceased, and not upon the deadly or dangerous attack about to be made upon him. There is no evidence showing deceased had made an attack on defendant. The immediate facts disclose that deceased got up from the dinner table, and said to defendant: "I hear that you are making some talk against me, and I hear that you are going to swear that I have been killing XT horses. You know that I never killed but one old gray mare, and if you swear that I killed any more I will kill you." Defendant denied making such statement, and Herring, a nephew of deceased, then said: "Yes; that man told me that you and that son of a bitch Stetson are going to swear that;" and defendant jerked his pistol, and shot Hall, and turned and shot witness through the left arm. Deceased was about fifteen feet from appellant when he was shot. Herring was about the same distance. The man referred to by Herring as communicating the statement to him was Anderson. According to some of the witnesses, when deceased made the statement above mentioned he had either picked up a piece of iron some three feet long, an eighth of an inch in thickness, and three-fourths of an inch in width, or was in the act of picking it up, and it was at this particular juncture that deceased fired the fatal shot. The charge referred to submits the case upon the theory that deceased had made an attack on defendant. This assumption is unwarranted, and turned the issue of self-defense, not upon apparent danger, but upon the fact that deceased had then made an attack. This charge has been condemned as erroneous. Phipps v. State (Tex. Cr. App.) 31 S. W. 400; Id., 31 S. W. 657; Stewart v. State, 40 Tex. Cr. R. 649, 51 S. W. 907.

With reference to flight of defendant, the court instructed the jury: "The state has offered evidence tending to show flight; that is, that immediately after the alleged homicide defendant left the state of Texas, and went to the territory of New Mexico. You are instructed that such testimony was admitted as tending to show conscious guilt of the offense for which he is now on trial, and you will consider it for no other purpose; and you will consider said evidence, in connection with all the other evidence in the case, in determining whether the flight, if he fled, was caused by conscious guilt or by other circumstances." Exception was reserved to this charge on the ground that it was on the weight of the evidence....