Spannell v. State

• Decision Date: 27 March 1918
• Docket Number: (No. 4660.)
• Citation: 203 S.W. 357
• Court: Texas Court of Criminal Appeals
• Parties: SPANNELL v. STATE.

203 S.W. 357

SPANNELL v. STATE.

(No. 4660.)

Court of Criminal Appeals of Texas.

March 27, 1918.

On Motion for Rehearing, May 8, 1918.

Concurring Opinion, May 10, 1918.

Appeal from District Court, Coleman County; J. O. Woodward, Judge.

H. J. Spannell was convicted of murder, and appeals. Reversed.

Anderson & Upton, of San Angelo, L. A. Dale, of El Paso, Williams & Williams, of Waco, and Critz & Woodward, of Coleman, for appellant. Wright & Harris, of San Angelo, Snodgrass, Dibrell & Snodgrass, and J. K. Baker, all of Coleman, Walter U. Early, of Brownwood, W. Van Sickle, of Alpine, and E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was convicted of the murder of M. C. Butler.

Appellant, his wife, and deceased were in an automobile together at night, and Major Butler and Mrs. Spannell were killed. Appellant claimed, and testified, that Major Butler assaulted him, and that several shots were fired by him at Major Butler with no intent to injure Mrs. Spannell. He was indicted in separate indictments for each of the homicides, was tried and acquitted for the murder of his wife, and filed in this case a plea of former acquittal based upon the proposition that the two homicides, resulting from a single act and volition, constituted but one offense. The court's refusal to submit the plea to the jury is made the basis of complaint.

If in shooting at Major Butler with malice appellant unintentionally killed his wife, he would be guilty and could be prosecuted for murdering her. Richards v. State, 35 Tex. Cr. R. 38, 30 S. W. 805; McCullough v. State, 62 Tex. Cr. R. 128, 136 S. W. 1056, in which the court says:

"If appellant shot at Ollie Jamison with either his express or implied malice, and killed his wife without intending to kill her, his offense would be murder in the second degree."

If in defending his life against an unlawful attack by Major Butler appellant accidentally killed his wife, he was guilty of no offense. Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165; Clark v. State, 19 Tex. App. 495; Vining v. State, 66 Tex. Cr. R. 316, 146 S. W. 912. From the Plummer Case, supra, we quote, as follows:

"We take the law to be that if the jury believed that the defendant found himself in a condition where he would have been justified in taking the life of Smelser in order to save himself from death or the infliction of great bodily harm, and, in so defending himself from such danger, he, by mistake or accident, shot Mrs. Smelser, then he would not only not be guilty of an assault with intent to murder Mrs. Smelser, but he would not be guilty of any offense whatever."

See Lankster v. State, 41 Tex. Cr. R. 603, 56 S. W. 65.

If he shot at Butler and in the same act killed Mrs. Spannell unintentionally, his guilt or innocence of each of the homicides would depend on whether in shooting at Butler he acted with malice or in self-defense. Assuming that the shots were fired at Butler only, and killed Mrs. Spannell, appellant having no intent or volition to injure her, to determine whether he was guilty or innocent on his trial for her murder it was necessary to decide whether in shooting at Butler he acted in self-defense or with malice. On this state of facts the decision that he was innocent of the murder of Mrs. Spannell necessarily involves the finding that appellant's act in firing at Butler was not such as to constitute murder.

It follows that, whether in shooting at Butler appellant acted with malice, or was justified, if in the same act, with no volition to injure his wife, he killed her, there could be but one offense, and the state, prosecuting under separate indictments for each of the homicides, would be concluded as to both by the judgment rendered in one of them. Cook v. State, 43 Tex. Cr. R. 185, 63 S. W. 872, 96 Am. St. Rep. 854; Rucker v. State, 7 Tex. App. 551; Sadberry v. State, 39 Tex. Cr. R. 466, 46 S. W. 639; Herera v. State, 35 Tex. Cr. R. 607, 34 S. W. 943; Moore v. State, 33 Tex. Cr. R. 166, 25 S. W. 1120; Carson v. People, 4 Colo. App. 463, 36 Pac. 551; Cooper v. Commonwealth, 106 Ky. 909, 51 S. W. 789, 59 S. W. 524, 45 L. R. A. 216, 90 Am. St. Rep. 275; Coffey v. United States, 116 U. S. 436, 6 Sup. Ct. 437, 29 L. Ed. 684; Scott v. State, 46 Tex. Cr. R. 310, 81 S. W. 950. In Rucker's Case, supra, this court held that the rule inhibiting the indictment for two felonies in the same count did not render invalid an indictment which in a single count charged the accused with the murder of two persons by the same act, citing numerous authorities, among them Clem v. State, 42 Ind. 420, 13 Am. Rep. 369, quoting from it, as follows:

"If it be true, as we suppose it is, that the killing of two or more persons by the same act constitutes but one crime, then it follows that the state cannot indict the guilty party for killing one of the persons, and after conviction or acquittal indict him for the killing of the other; for the state cannot divide that which constitutes but one crime, and make the different parts of it the bases of separate prosecutions."

Where two persons are killed or injured in one transaction, the fact that more than one shot was fired does not, as a matter of law, render it insusceptible of proof that they were both killed by one act. A series of shots may constitute one act, in a legal sense, where they are fired with one volition. In cases where two persons have been killed or wounded by a series of shots, and under the general issue of not guilty it is urged as a defense that one of the homicides or injuries resulted from shots aimed at one striking another, the issue of singleness of the act and intent bringing the double result has not been made to depend on the number of shots fired. This is illustrated in Lankster v. State, 41 Tex. Cr. R. 603, 56 S. W. 65, and in Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165, in each of which two shots were fired, and in the McCullough Case, 62 Tex. Cr. R. 128, 136 S. W. 1055, several shots were fired. In Cook v. State, 43 Tex. Cr. R. 185, 63 S. W. 872, 96 Am. St. Rep. 854, where the question of the identity of the act and volition resulting in two injuries was raised on plea of former acquittal, the court uses the following language:

"The evidence shows that two shots were fired. According to the evidence of the defense, both of these shots were fired at Goodman. According to the evidence of the state, one of the shots was fired at the deceased, Hargrove. Then it becomes a question of fact, and the court should have admitted the evidence under defendant's plea, and then have charged the jury that if they believed from the evidence, beyond a reasonable doubt, that defendant shot at deceased, and not at Goodman, then they would find against appellant's plea of former acquittal, and proceed to consider whether or not defendant was guilty of any offense under other portions of the charge. * * * Where there is one act, one intent, one volition, as is evidenced by the testimony of appellant in this case, then appellant cannot be convicted upon an act, intent, and volition for which he had been previously acquitted."

We do not understand the Ashton Case, 31 Tex. Cr. R. 482, 21 S. W. 48, the Augustine Case, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765, and the Keaton Case, 41 Tex. Cr. R. 627, 57 S. W. 1125, as varying from this view. In each of them the plea was denied upon the ground that the two homicides were the result of separate acts, but the principle controlling them is thus stated in the Ashton Case, supra:

"The true test in such cases must be that, if the intent to kill the one is an intention formed and existing distinct from and independent of the intention to kill the other, the two acts cannot constitute a single offense."

Lillie's Case, 79 Tex. Cr. R. 615, 187 S. W. 482, is apparently in conflict with the case of Cook v. State, supra, and other cases cited in connection therewith. In the Lillie Case, however, the point passed upon was the refusal of a charge submitting the issue of former conviction. While the facts raised the issue, there was not, as in this case, specific testimony of intent of the accused to injure but one of the parties. If the Cook Case had been cited it is probable that the court would have held the charge proper. From the fact that it is not cited either in the brief or the opinion, we draw the inference that it was not the intention of the court to overrule it.

Counsel for the state are correct in stating that the burden was upon appellant to prove his plea. Fehr v. State, 36 Tex. Cr. R. 96, 35 S. W. 381, 650, and Bishop's New Crim. Proc. p. 634, vol. 2, from which we quote as follows:

"The identity of the parties and of the offense, the defendant taking, as just said, the burden of proof, is shown by parol. It is so even though the two indictments are alike. A common method is to produce the testimony of persons who were present at the previous trial as to what was there investigated, and if it appears to be within the present indictment, a prima facie case is made, to be overcome only by proof from the other side of the diversity of the two offenses. Such witnesses need not be those of the former trial, the calling of whom is not indispensable even though they are within reach of process."

Major Butler and Mrs. Spannell were both killed by pistol shots. Persons reaching them immediately after the shooting found three wounds, apparently fired at close range, in the head of Mrs. Spannell, each of them from a 38 caliber pistol, and in the body of Butler they found two similar wounds and one fired from a 45 caliber pistol. Appellant claimed that while he was driving the automobile, sitting on the front seat, Major Butler and Mrs. Spannell sitting on the back seat, he was assaulted by Butler; that he got hold of the larger pistol which was in the car, and that in the struggle with Butler it was fired once, when he lost possession of it; that he was...