Steen v. State

• Decision Date: 27 October 1920
• Docket Number: (No. 5899.)
• Parties: STEEN v. STATE.
• Court: Texas Court of Criminal Appeals

225 S.W. 529

88 Tex. Cr. R. 256

STEEN v. STATE.

(No. 5899.)

Court of Criminal Appeals of Texas.

October 27, 1920.

State's Rehearing Denied December 8, 1920.

Appeal from District Court, Bexar County; W. S. Anderson, Judge.

John Steen was convicted of murder, and he appeals. Reversed and remanded.

M. W. Terrell and Chambers, Watson & Wilson, all of San Antonio, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

This appellant was given the death penalty in the Thirty-Seventh district court of Bexar county, for the murder of one Albert Tips. The death of young Tips was caused by a pistol shot fired on the streets of San Antonio, on the night of December 31, 1919. With his mother, sister, and three brothers, deceased was riding in a car on the streets. It was New Year's Eve, and crowds of people were on the streets, making all the noise, in all the various ways, with which such an occasion is often celebrated. Some of the Tips family had procured "bombs," about which the evidence seems to differ, but which were small paper-covered missiles, resulting in an explosion when thrown against hard objects. Throwing these bombs seemed one of the common forms of contributing to the general uproar on that night. Appellant, a negro, owned a new Dodge car, which was parked at a negro restaurant on that part of Commerce street in said city which was largely frequented by negroes. The Tips family passed by in their car, and at or about this time a bomb was thrown at appellant's car, and some damage done to the paint where it struck and exploded. Whether this bomb came from the Tips car was a subject of dispute. Appellant and his witnesses claimed that it did. Be that as it may, manifestly appellant believed that it did, for he got into his car, and pursued and overtook the Tips car. What occurred then is also in much dispute, but for the purpose of deciding whether the law applicable was charged upon the trial, it may be stated that appellant claimed that, when he overtook the Tips car, he then informed the occupants that they had damaged his car, and he further claims that thereupon two of the four young men who were in the car got out, one of them having in his hand a car crank, and the other having other bombs, which he threw at appellant and his car. It was in testimony by reputable witnesses that on both the rear fender of appellant's car, and on the right side of the hood, there were places where the paint was roughened, as though by being struck by some object. Appellant further testified that, when he attempted to state to the Tips family the fact of the damage, they refused to listen to him, and told him in substance to go on away, as they did not want any argument with him. That the Tips family started their car, going back in the direction of the thickly populated portion of the city, and that appellant got in his car and started after them, is undisputed. Appellant claimed that it was his purpose at that time to follow them until he could secure the assistance of an officer, but after going a little way he used his pistol for the purpose, as claimed by him, of shooting at a tire, hoping thereby to stop the machine in which the Tipses were riding, until he could secure the assistance of some officer. After firing his pistol in the direction of the car, appellant turned off, and gave his pistol to another party, and went on to where his family were.

Albert Tips was sitting on the rear seat of the car, and does not seem to have taken any part in the controversy whatever. He was shot in the back part of his head, causing instant death. Upon the trial, the court submitted the issues only of murder and negligent homicide in the second degree. Complaint is made of the fact that in submitting the latter the court failed to instruct the jury that it must appear that there was apparent danger, resulting from the unlawful act of appellant in firing the pistol. While we do not think this a very material error, it may be corrected upon another trial.

We think the trial court erred in not submitting the issue of manslaughter. Exception was taken to the charge for failure to submit said issue, and a special charge on the subject was asked. We think it must be admitted that the facts established that, up to a few minutes before the unfortunate shooting, the parties were practically strangers. No suggestion appears that appellant followed the car of the Tipses for any other reason, except that he believed they had damaged his car as they passed, and it is undisputed that, within a moment or two after overtaking them, he fired his pistol toward their car. He testified that his intent in so doing was only to burst a tire, and that he had no intent to kill any one. If the jury had so believed, they would have found him guilty of negligent homicide. That they did not believe his story is evident.

Granting that his story was false, then what have we? A shooting at a car in which were women and men, against whom appellant had no previous grudges or ill feeling, except such as grew out of what occurred within 10 minutes preceding the use of the pistol. It is true that this is long enough for one to conceive malice, which would make him guilty of murder; but it is also true that the injury which he says he believed those people had inflicted upon his new car, coupled with what he says was their treatment of him when he sought them out, their renewal of the attack upon his car, and refusal to pay any attention to his demands, might be believed by the jury to have aroused such anger or resentment as to render his mind incapable of cool reflection, and that the shooting may have occurred when he was in that mental condition which reduces homicide to manslaughter. At least it is clear that it is not for the trial court to say whether such mental condition existed. The causes named in our statute as adequate to reduce a homicide to manslaughter are well understood to be instances, and not limitations.

When a killing takes place, and there are circumstances in evidence from which such adequate cause and passion might be inferred, the duty of the trial court to submit such issue to the jury is plain. Whether said mental condition did so exist, and whether the causes in evidence were such as would be calculated to produce such passion in the mind of an ordinary person, are questions of fact for the jury, and are not to be decided by the court. When appellant fired at this carload of strangers, who was to say whether the act was caused by malice, resulting in murder, or the blind, unreasoning passion that is manslaughter. If he did not fire at the...