Stroud v. State

• Decision Date: 18 December 1929
• Docket Number: (No. 12859.)
• Parties: STROUD v. STATE.
• Court: Texas Court of Criminal Appeals

Page 52

24 S.W.2d 52

STROUD v. STATE.

(No. 12859.)

Court of Criminal Appeals of Texas.

December 18, 1929.

Rehearing Denied February 5, 1930.

Commissioners' Decision.

Appeal from District Court, Wilbarger County; Robert Cole, Judge.

W. H. Stroud was convicted of murder, and he appeals. Reversed and remanded.

Storey, Leak & Storey, of Vernon, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, murder; penalty, three years in the penitentiary.

The state introduced no eyewitnesses to the killing. An undertaker and the physician who attended deceased after the fatal difficulty were introduced as witnesses, and by the physician a predicate was laid for the introduction of the dying declaration of deceased, which contains the chief incriminating facts relied on by the state for a conviction. From this we quote in part:

"After the election Stroud and I were reading the election returns and he said he would call his part of the bet off, and I told him no, we had the bet up. I told Stroud he could either pay that check or we would see who was the best man. He said, `what are you waiting on?' and I told him to take his glasses off, and he reached up and got his glasses and said, `They are already off,' and he cut me at the same time. I did not realize I was cut and I waded into him and hit him four or five licks, and then saw the blood running off of me. I did not have a weapon of any kind, and struck Stroud with my fist only. I had a pocket knife which was in my pocket. I did not at any time get my knife out."

The substance of appellant's testimony was that he and deceased had made an election bet; that same had been called off; that after the election deceased demanded payment and told him he was going to "whip hell" out of him if he did not turn over his check that deceased told him to pull off his glasses; that he did so, whereupon deceased struck him in the ear with a knife, blooding him; that deceased continued his attack with his knife, whereupon he struck him one time with a knife somewhere in the body. He further testified that he only hit him one lick, and that because he was afraid he was going to kill him; that he did this to protect himself, and he did not intend to kill him. Several eyewitnesses were introduced by appellant, who corroborated much of his testimony. It was shown the deceased died from a knife wound in his chest.

The court's charge on self-defense is under vigorous attack. Many of the objections to the charge have merit which we will not take up seriatim. A portion of the court's charge on self-defense is as follows:

"You are further instructed that, in addition to his plea of not guilty, the defendant in this case interposes the plea of self-defense, and upon this issue and as the law governing the same you are not instructed: Homicide is justifiable in the protection of the person from any unlawful and violent attack, and in such case all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the act of making such unlawful and violent attack, or while the person killed is doing some hostile act, or making some hostile demonstration that would, viewed from the standpoint of the slayer, produce in his mind a reasonable fear or expectation of death or of some serious bodily injury * * * defendant would be justified in killing the deceased if it is shown to have been done to prevent the deceased from murdering or maiming him, or if it is shown that at the very time of the killing, or immediately preceding such killing, deceased had made, or was in the act of making, such hostile demonstration toward the defendant such as would produce in his mind a reasonable fear or expectation of death or of some serious bodily injury; but in that case, to justify the killing, it must reasonably appear from the acts or words, coupled with the acts of the deceased, that he intended to murder, maim, or inflict some serious bodily injury upon the defendant, and the killing must have taken place while the deceased was in the act of committing such offense, or after some act done by him showing evidently an intention to commit such offense."

It is apparent that this language is in part a quotation from article 1224 of the Penal Code. It is more than this, however, as it commingles the law of self-defense based upon article 1222 of the Penal Code with that based upon article 1224, P. C. These two articles are the basis for two distinct phases of self-defense, governed entirely by different rules, and can in no case be used interchangeably. They are intended to govern two entirely different states of facts. In the one homicide is permitted to prevent murder, rape, etc. (article 1222, P. C.), while in the other (article 1224, P. C.) homicide is made justifiable "in the protection of the person or property against any other unlawful and violent attack besides those mentioned, and in such cases all other means must be resorted to for the prevention of the injury," etc. It has been held in a multitude of cases that, if appellant acts under a reasonable expectation or fear of death or of serious bodily injury, produced by the acts of his adversary at the time of the homicide, he is not bound to resort to other means of averting such danger, but may slay his adversary if the danger be imminent and pressing, or if it reasonably appears so to be to defendant, viewed from his standpoint at the time. Branch's P. C. p. 1071; Hill v. State, 10 Tex. App. 618; Foster v. State, 11 Tex. App. 108; Best v. State, 61 Tex. Cr. R. 551, 135 S. W. 581. Again, "if the attack, if made at all, was made with a deadly weapon, and from defendant's standpoint at the time produced a reasonable expectation or fear of death or of serious bodily injury, it is error to charge the jury on the theory that defendant must have resorted to other means than retreat to avoid the necessity of killing his assailant." Branch's P. C. p. 1071; Ainsworth v. State, 8 Tex. App. 537; Kendall v. State, 8 Tex. App. 582; Foster v. State, 11 Tex. App. 108; Branch v. State, 15 Tex. App. 103; Gilly v. State, 15 Tex. App. 301; Cartwright v. State, 16 Tex. App. 487, 49 Am. Rep. 826; Morgan v. State, 16 Tex. App. 634; Risby v. State, 17 Tex. App. 520; Hunnicutt v. State, 18 Tex. App. 498, 51 Am. Rep. 330; Hunnicutt v. State, 20 Tex. App. 643; Williams v. State, 22 Tex. App. 497, 4 S. W. 64; Orman v. State, 24 Tex. App. 502, 6 S. W. 544; Kelly v. State, 27 Tex. App. 566, 11 S. W. 627; Baltrip v. State, 30 Tex. App. 545, 17 S. W. 1106; Cline v. State (Tex. Cr. App.) 28 S. W. 684; Shumate v. State, 38 Tex. Cr. R. 279, 42 S. W. 600; McCandless v. State, 42 Tex. Cr. R. 60, 57 S. W. 672; Casner v. State, 42 Tex. Cr. R. 124, 57 S. W. 821; Poole v. State, 45 Tex. Cr. R. 348, 76 S. W. 565; Crenshaw v. State, 48 Tex. Cr. R. 78, 85 S. W. 1147; Floyd v. State, 52 Tex. Cr. R. 104, 105 S. W. 791; Snowberger v. State, 58 Tex. Cr. R. 544, 126 S. W. 878; Anderson v. State, 60 Tex. Cr. R. 314, 131 S. W. 1124; Edwards v. State, 60 Tex. Cr. R. 326, 131 S. W. 1078; Best v. State, 61 Tex. Cr. R. 551, 135 S. W. 581; Maclin v. State, 65 Tex. Cr. R. 384, 144 S. W. 951, 953; Trevino v. State, 72 Tex. Cr. R. 91, 161 S. W. 108, 109.

From the appellant's standpoint in this case there was a violent attack being made upon him with a knife in the hands of a vigorous adversary. He testified that he struck with his knife to protect himself and because he feared he would be killed. If the character of the attack was such as to reasonably produce and did produce in the mind of appellant a reasonable expectation or fear of death or serious bodily injury, he was neither bound to retreat nor to resort to any other means before slaying his adversary. The right to slay under such circumstances has been given him by law, and this could not be abridged by requiring, as was done in the court's charge in this case, a resort by him to other means to prevent a threatened injury to himself. We...