Snow v. State

• Decision Date: 26 October 1921
• Docket Number: (No. 6208.)
• Citation: 237 S.W. 563
• Parties: SNOW v. STATE.
• Court: Texas Court of Criminal Appeals

237 S.W. 563

SNOW v. STATE.

(No. 6208.)

Court of Criminal Appeals of Texas.

October 26, 1921.

On Motion for Rehearing, February 1, 1922.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

H. C. Snow was convicted of murder, and appeals. Reversed and remanded.

Heyser, Hicks, Wilson & Williams, Bishop & Lantz and E. H. Gipson, all of Wichita Falls, Taylor, Allen, Muse & Taylor, of Fort Worth, and Chas. L. Black, of Austin, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

MORROW, P. J.

Appellant is condemned to confinement in the penitentiary for a period of 20 years for the offense of murder.

At Kemp City, in Wichita county, there was in operation a gambling establishment. On the night of the tragedy, the deceased, Caples, and four other persons, went from Wichita Falls for the purpose of arresting the lawbreakers and bring to an end the operation of the gambling house. On reaching the place, the house was found to be filled with people engaged in various gambling games. Some of the party stopped near the front entrance while Caples and his companion, Tony, went inside to the rear of the house. Each of them was armed with a pistol. A number of shots were fired, and Caples and Tony were killed by some of them. Caples and Tony presented their pistols, and ordered the persons in the house to put their hands up. The witnesses, attempting to quote them, used the expressions, "Put them up and get to the wall;" and, "Stick them up and face the wall."

The theory of the defense is that there were others shooting; that there was no concert action or prearrangement; that the evidence does not exclude the theory that the fatal shots were fired by some one other than the accused; that the shots fired by him were fired because he believed the parties were robbers; and that he had no information or knowledge that they were peace officers or the semblance thereof.

The state, on the contrary, presents the theory that the appellant knew that the party consisted of peace officers, and that the shots were fired to avoid arrest of himself or others, or out of resentment because of the interference with the gambling operation.

Various rulings of the trial court are urged as reasons for a reversal of the judgment. In appraising the merits of the criticisms to the charge, other parts of it must be considered. On the phase of manslaughter, the jury was told that if the deceased "was doing some act which, within itself or by words accompanying it, was reasonably calculated to produce, and did in fact produce, in the mind of the defendant sudden passion," etc., no qualification adverse to the appellant was embraced. On self-defense, in one paragraph, the law of real and apparent danger growing out of the conduct of the deceased as it appeared to the appellant was embraced. In another, the right to kill the deceased, if appellant believed his purpose was to rob, was made absolute. In another, the jury was informed that conducting a gambling house was a felony, and that those engaged in it might be arrested without warrant, and that "if the jury should believe from the evidence beyond a reasonable doubt that the defendant, Snow, and others were engaged in exhibiting or running a gaming table," then there existed the legal right to arrest them, and that if the deceased attempted to arrest, using only the degree of force that was reasonably necessary under the circumstances, and was shot by the appellant to prevent such arrest or to escape the consequences of the unlawful act, if any, in which he was engaged, his right of perfect self-defense would be abridged, and that his offense might be manslaughter or murder, as the jury might determine. In another subdivision, appellant's right to kill the deceased was affirmed, if, viewing his conduct from appellant's standpoint, it reasonably appeared that he was about to be robbed, or suffer bodily injury at the hands of the deceased or his companion. Following these, in the same paragraph, this instruction was given:

"But, if you should find and believe from the evidence that the defendant was not interested or engaged in keeping, exhibiting, or running any of said gaming tables, but was only a patron or player in the place, then his right of self-defense would not be abridged by the fact that he was such a participant in the game, unless you should further find and believe that he shot and killed Marvin Caples in order to prevent said Caples from arresting the parties who were running or exhibiting such games."

This is assailed upon the assertion that it puts upon the appellant the burden of proving that he was not a keeper of the gaming house. The clause is immediately followed by a statement in the charge that the burden of proof was upon the state; that the innocence of the accused was presumed until established by legal evidence, beyond a reasonable doubt, and directing an acquittal if a reasonable doubt of appellant's guilt existed in the minds of the jury. In the same connection, the charge instructed the jury, in appropriate language, that if they believed the appellant guilty of an offense, but entertained a reasonable doubt as to its grade, that he must be given the benefit of the doubt. Fairly considered, as a whole, we think the charge was not subject to the objection made. So considered, it does not, in our judgment, place upon the appellant, as said in the objection, "the burden to show that at the time of the killing he was not engaged in running a gambling house." In the same paragraph of the charge, as pointed out above, the jury was specifically told that to qualify appellant's right of self-defense on the theory of arrest the jury was required to believe beyond a reasonable doubt that the appellant and others were engaged in running a gaming table. The language criticized and quoted above, considered in connection with that to which we have just adverted, amounted only to the statement that if they did not believe, beyond a reasonable doubt, that he was conducting a gaming table, his right of self-defense would not be qualified unless he fired to prevent the arrest of those who were so engaged. The right to convict is predicated upon the finding by the jury of the essential facts, beyond a reasonable doubt, and in the concluding paragraph of the charge to which we have adverted the law touching the burden of proof and the presumption of innocence is again stated.

Complaint is made of the refusal of the trial judge to give a special charge on the law of excessive force of the officers attempting the arrest. Though the appellant knew that the deceased was authorized to arrest those engaged in exhibiting a gaming table, and though he may have been so engaged, still the officer would have been in the wrong if, in making the arrest, he exercised such wanton and menacing manner as to threaten the appellant or his companions with serious bodily harm. If in such manner the arrest was attempted, the appellant had a right to protect himself. Jones v. State, 26 Tex. App. 12, 9 S. W. 53, 8 Am. St. Rep. 454. This right was not unlimited, but confined to the use of means proportionate to the necessities of the occasion, as viewed from appellant's standpoint. Ruling Case Law, vol. 2, p. 474; Condron v. State, 69 Tex. Cr. R. 521, 155 S. W. 253; Alford v. State, 8 Tex. App. 545; Keady v. People, 32 Colo. 57, 74 Pac. 892, 66 L. R. A. p. 363, and note; Creighton v. Commonwealth, 83 Ky. 142, 4 Am. St. Rep. 143; Id., 84 Ky. 103, 4 Am. St. Rep. 193; State v. Gum, 68 W. Va. 105, 69 S. E. 463, 33 L. R. A. (N. S.) p. 150, and note.

The theory that appellant killed the deceased, knowing that he was an officer, but defending against wanton conduct in making the arrest, is not presented as an affirmative defense. The defense presented, both by appellant and his witnesses, was that he fired without knowledge that the deceased was attempting to make an arrest, and under the belief that his purpose was robbery. As indicated above, imperfect self-defense and perfect self-defense were submitted, the former without qualification and the latter qualified by the theory of lawful arrest. The charge on the subject limited the right of the officers to arrest, and told the jury, in substance, that such right existed only in the event that in effecting it they used only such force as was, under all the circumstances, reasonably necessary.

Appellant said in his testimony that he entered the house in which the homicide took place in the evening, and was engaged in playing at a game of poker, and was facing the rear wall when he heard the words, "Get them up; stick them up damned quick, and face the wall;" that he heard this repeated one time by two men; that he looked and saw, about 12 or 15 feet from him, a man standing with a revolver. The people were turning tables over and getting up against the wall. He said:

"I just jumped up, and the man that had the gun in his hand was looking at me, and I jerked my gun and shot him, or shot in that direction. I shot twice."

He claimed that there was confusion and that after he fired he heard the announcement that the parties were officers, but had no such knowledge before he shot. He had more than $800 in his possession, and thought there was an attempt to rob.

In the presentation of all of the defensive testimony, the theory is urged and reiterated that appellant fired before there was any announcement that the parties were officers. The state's testimony was to the contrary. The arrest was attempted at nighttime. There were more than half a hundred people present, and gambling by appellant and others was in progress in violation of the law. It was obvious from the equipment and the exhibition of gambling games that the keepers of the house and exhibitors of the games were engaged in committing a felony. Penal Code, articles 551, 559. Many of the persons present were armed, as subsequent developments disclosed, and appellant...