Summers v. State

• Decision Date: 22 May 1912
• Citation: 148 S.W. 774
• Parties: SUMMERS v. STATE.
• Court: Texas Court of Criminal Appeals

148 S.W. 774

SUMMERS v. STATE.

Court of Criminal Appeals of Texas.

May 22, 1912.

Appeal from District Court, Hardin County; L. B. Hightower, Judge.

A. B. Summers was convicted of murder in the second degree, and he appeals. Affirmed.

Jno. L. Little, of Kountze, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On October 2, 1908, appellant was indicted for the murder of R. H. Hague on May 11, 1908. He was tried in April, 1911, convicted of murder in the second degree, and given five years in the penitentiary—the lowest penalty.

The evidence is quite lengthy. It is unnecessary to give an extended statement of it.

There are several objections by appellant in his motion for new trial to the charge of the court. Most of these are too general to require a review by this court. In some, minor matters are complained of; but when the charge, taken as a whole, which must be done, is considered, these complaints are without merit. There are some three questions, however, which it is necessary to discuss.

One of these is: He complains "the court erred in failing to charge the jury on the law of manslaughter and in not submitting to them that issue under the facts of the case." Clearly this is too general to require this court to consider the question. Mansfield v. State, 138 S. W. 591; Luster v. State, 141 S. W. 214; Ryan v. State, 142 S. W. 883; Berg v. State, 142 S. W. 886—and the authorities cited in these cases. This court, through Presiding Judge Davidson, in the case of Mansfield, supra, said: "Appellant contends, in a general way, that the court erred in not charging the law of manslaughter. The exception in the record presenting this matter is found in the motion for new trial in the following language: `The court should have charged on manslaughter.' This is found at the close of the second paragraph of the motion for new trial, and then in the third ground of the motion it is stated the court should have given a correct charge to the jury, as raised by the testimony of defendant, concerning the alleged insulting note which was carried to defendant's wife by deceased Thomas, knowledge of which was conveyed to defendant on the evening before the homicide, and which, if believed by the jury, would reduce the homicide to manslaughter. The extract from the ground of the motion is not sufficient to present the failure of the court to charge on manslaughter. It is too general."

The application of this rule is manifest in this case. The statement of facts contains 96 full typewritten pages. This court should not be required to hunt out from this mass of testimony whether or not manslaughter is raised. The assignment should directly and specifically show in what way and how the evidence called for any such charge, if it did.

Even if we could consider the question, after reading and studying the whole statement of facts, we have been unable to find any pertinent or forcible evidence from which it might reasonably be supposed that the jury could have been influenced by it to find manslaughter in arriving at their verdict. The very most that could be claimed from any of the testimony is the very slightest suggestion or hint of some fact that might be tortured into tending to show manslaughter. Certainly the evidence in no pertinent or forcible way suggests manslaughter sufficient to authorize the court to submit it. Bishop v. State, 43 Tex. 390; Davis v. State, 28 Tex. App. 560, 13 S. W. 994; Maxwell v. State, 31 Tex. Cr. R. 144, 19 S. W. 914; Cannon v. State, 41 Tex. Cr. R. 490, 56 S. W. 351; Navarro v. State, 43 S. W. 106; Alexander v. State, 138 S. W. 738; Mitchell v. State, 144 S. W. 1014; Treadway v. State, 144 S. W. 668; Jennings v. State, 60 Tex. Cr. R. 421, 132 S. W. 473; Blount v. State, 58 Tex. Cr. R. 510, 126 S. W. 570; Dougherty v. State, 59 Tex. Cr. R. 464, 128 S. W. 398; Potts v. State, 56 Tex. Cr. R. 44, 118 S. W. 535; Ford v. State, 40 Tex. Cr. R. 280, 50 S. W. 350.

In the case of Davis v. State, supra, this court, through Judge Hurt, said: "Of what degree of force must the evidence be that tends to establish an offense, or tends to mitigate the offense charged, in order to require a charge applicable thereto? Chief Justice Roberts says that if its force is deemed to be very weak, trivial, or light, and its application remote, `the court is not required to give a charge upon it.' `If, on the other hand, it is so pertinent and favorable as that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, the court should charge so as to furnish them with the appropriate rule of law upon the subject.' Bishop v. State, 43 Tex. 390. Hence, unless the evidence tending to present a less degree of an offense, or any theory of defense, be so pertinent and forcible that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, a failure of the court to charge thereon would not be ground for reversal in the absence of exceptions. This position is in exact harmony with the first opinion in this case, and in accord with Bishop's Case, supra, and a number of cases decided by this court, notably Cunningham's Case, 17 Tex. App. 89, Elam's Case, 16 Tex. App. 34, and Leeper's Case, 27 Tex. App. 694, 11 S. W. 644. Loose expressions upon this subject can be found in the opinions of this court; but the principle is well settled and is absolutely correct, whether this court has always adhered to it or not, that in the absence of exceptions to the charge of the court, for this court to reverse, the evidence tending to present a phase of the case or theory favorable to the accused must be so pertinent and favorable that it might reasonably—not possibly —be supposed that the jury could be influenced by it in arriving at their verdict. Unless the evidence be of such a character, no injury appears, no injury is probable— not possible, but probable—and, unless this appears, there is no ground for reversal; and to reverse in the absence of probable injury would be contrary to principle."

"It is not incumbent on the trial court, nor proper, to instruct upon manslaughter, where there is no testimony, or where there is a mere suggestion or hint of facts that might show manslaughter; such a mere semblance of proof or so slight proof as no sensible juror would hang a question upon." Wilson v. State, 60 Tex. Cr. R. 3, 129 S. W. 613.

Again, it is the unquestioned law of this state that where the evidence on the one hand clearly shows murder, and on the other perfect self-defense, the court should not charge on manslaughter. Homberg v. State, 12 Tex. App. 1; Williams v. State, 2 Tex. App. 287; Grissom v. State, 4 Tex. App. 387; Self v. State, 28 Tex. App. 409, 13 S. W. 602; Angus v. State, 29 Tex. App. 62, 14 S. W. 443; Floyd v. State, 29 Tex. App. 355, 16 S. W. 188; McGrath v. State, 35 Tex. Cr. R. 413, 34 S. W. 127, 941; Lentz v. State, 48 Tex. Cr. R. 2, 85 S. W. 1068; Jirou v. State, 53 Tex. Cr. R. 18, 108 S. W. 655; Shelton v. State, 54 Tex. Cr. R. 590, 114 S. W. 122; Ward v. State, 59 Tex. Cr. R. 62, 126 S. W. 1146; Cannon v. State, 59 Tex. Cr. R. 398, 128 S. W. 146; Dougherty v. State, 59 Tex. Cr. R. 464, 128 S. W. 401; Jennings v. State, 60 Tex. Cr. R. 421, 132 S. W. 473; Hardcastle v. State, 36 Tex. Cr. R. 562, 38 S. W. 186; Eggleston v. State, 59 Tex. Cr. R. 542, 128 S. W. 1105; Alexander v. State, 138 S. W. 722; Treadway v. State, 144 S. W. 667.

Unquestionably the evidence in this case shows, on the part of the state, murder in one or the other degrees, or, on the other hand, by appellant, perfect self-defense.

The testimony without doubt and overwhelmingly established that the appellant and the deceased had, in effect, been enemies for about two years; that there had been some efforts during this time to "patch up" between them, but this had failed; that a time or two a long while before the killing there had been a kind of patched-up reconciliation, but it was not full, on the part of either; that they were in effect still enemies; that the deceased had many times and to many persons threatened to kill appellant. These threats had been communicated to appellant, and he had unquestionable knowledge thereof. The appellant himself testified that many persons, naming a good many, had communicated these threats to him from time to time during this whole period of two years. These threats became more frequent for a short time prior to the killing. Appellant himself testified that he expected he could call the names of 30 persons during this time who had communicated these threats to him. He showed that within about 30 minutes prior to the killing the deceased had made such a threat against him, and that it was communicated to him. He also showed by his own testimony, and that of others, that after he started down to the "jungles," a certain part of the town beyond where the killing occurred, and within 20 or 30 feet of the deceased's saloon, where he killed him, that he was then again warned of deceased's threats and urged not to go by the deceased's saloon, because the threats might then be executed. It was also unquestionably shown that the deceased was a violent and dangerous man, and the appellant knew this, and had known it for a long time. All these facts just above stated were uncontroverted by the state. The state introduced no evidence to dispute them. The testimony of the appellant's witnesses established all these facts overwhelmingly.

The appellant further, by his testimony, showed: That he was drinking considerably that night just before the killing. That he had taken some five or six drinks. He denied that he was drunk. That for a long time before the killing, during the whole time of the two years of the hostilities between the appellant and the deceased, appellant had avoided deceased, would not go into any house if he knew deceased was therein. That if his duties or business carried him...