Threadgill v. State, 25246

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 239 S.W.2d 813,156 Tex.Crim. 157
• Docket Number: No. 25246,25246
• Parties: THREADGILL v. STATE.
• Decision Date: 11 April 1951

Page 813

239 S.W.2d 813

156 Tex.Crim. 157

THREADGILL v. STATE.

No. 25246.

Court of Criminal Appeals of Texas.

April 11, 1951.

Rehearing Denied June 6, 1951.

Pat Beadle, Clarksville, McKinney & McKinney, Cooper, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

GRAVES, Presiding Judge.

The conviction is for murder. The punishment assessed is confinement in the state penitentiary for five years.

Appellant and deceased owned adjacent farms. A dispute arose as to the correct location of a boundary line between their farms. The amount of land actually involved was a very small strip. Appellant had been in possession of his tract of land for a number of years, but the deceased had only recently acquired his tract. Deceased came to the conclusion that a fence along appellant's north line was 66 feet over his (deceased's) land. Deceased called upon appellant to move the fence. Appellant claimed that the fence was on the correct line and had been so located for a long period of years, and refused to move it. The killing grew out of this difficulty.

There was no eye witness to the killing other than the appellant. The State's case consisted mainly of proof that appellant surrendered to a Justice of the Peace soon after the shooting, advising that he had killed a man and wanted to surrender. There was proof of the finding of certain blood spots and other physical facts, which the State contended showed an unjustified killing.

Appellant admitted the shooting. His defense was that he killed the deceased by shooting him in self-defense by reason of the actual attack by deceased while using, exhibiting and advancing upon him with a gun or rifle. There was also evidence of threats.

Two propositions are urged for a reversal of the conviction. These relate to the charge of the court.

The trial court, notwithstanding a proper exception and also a special requested charge, failed to charge the presumption which arises as a matter of law, under Art. 1223, Vernon's P.C. relative to the use of a deadly weapon by the deceased. Said article reads as follows: 'When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.'

It has been the long and consistent holding of this court that where the evidence raises the issue of the use of a deadly weapon by the deceased, it is an absolute presumption, imperative to juries as well as courts, that the deceased intended to inflict the injury mentioned in said article and that the provision thereof must be given in the charge to the jury. See McCoy v. State, 135 Tex.Cr.R. 73, 117 S.W.2d 787; Middleton v. State, 147 Tex.Cr.R. 146, 179 S.W.2d 510; Hurst v. State, 151 Tex.Cr.R. 615, 210 S.W.2d 594.

That the facts did not raise the issue is demonstrated by the testimony of the appellant which we quote: 'I got out of my car and started toward the front end of the car, toward Mr. George, and I said, 'I would like to talk to you,' and he said, 'I don't have a damn thing to say to you', and he started walking toward me. I commenced backing up, backing back. I backed back to my car door. I reached for the door and he turned and I reached the door and brought my gun out and he turned and commenced pulling off his gloves and started west, and I seen a gun laying down there, leaning up against the spool of wire. That gun was probably twenty or twenty- five steps from where Mr. George was. I couldn't hardly tell how far that gun was from the west end of that hog pasture there. You see the land there, and just guessing at it, probably that far away from him, probably ten or twelve feet. When I saw him going toward the gun I shot. No, I didn't shoot at him. I shot over toward that pool. I shot at that time because I didn't want to shoot him and I thought he might stop. No, sir, he did not stop. At that time he got to his gun and reached over to get his gun and came up with his gun in his hand and I shot him. Yes, sir, I shot at him at that time. I shot at him because I thought he was going to shoot me. At the time I shot him he had his back toward me. He was going west to his gun. Yes, sir, when I shot he had his gun in his hand.'

We do not think that this testimony raised the issue that the deceased was 'attempting or committing such murder', etc. as demanded by statute, so that it could be presumed therefrom that the person so using such weapon deisgned to inflict the injury contemplated. From appellant's own testimony above quoted, it is shown that prior to the time the deceased had touched his gun or had reached the same, appellant had already fired one shot which he claimed was not directed at the deceased, and that as the deceased picked up his gun, appellant shot him in the back. Evidently the deceased's back was toward the appellant. We are therefore at a loss to see how the deceased could have committed even a simple assault with his back turned toward the assaulted party. It is worthy of note also that the officer who early appeared on the scene found the deceased's .22 caliber rifle in his pickup. We do not think that the statute, Article 1223, Vernon's P.C. was called for by the facts. See Robinson v. State, 100 Tex.Cr.R. 424, 274 S.W. 137; Miller v. State, 126 Tex.Cr.R. 220, 71 S.W.2d 516.

In Cain v. State, Tex.Cr.App., 226 S.W.2d 640, 642, we said: 'Mere possession of a deadly weapon by the deceased does not raise the presumption provided by Art. 1223, P.C. It is the use of such weapon in making an assault that raises the presumption, not its mere possession.'

Again, it is held in Gunn v. State, 95 Tex.Cr.R. 276, 252 S.W. 172, 181, relative to the failure of the trial court to charge on the presumption arising from the use of a deadly weapon by the deceased as follows: 'We do not believe any case can be found in the books where the testimony of the accused alone is relied upon to establish both issues, and in which the court fully and fairly submitted the law of the right of the accused to act in self-defense based on danger, actual or apparent, as viewed from his standpoint at the time, in which this court has ever held that it was reversible error to decline to give Article 1106 (now Article 1223), both issues being dependent upon exactly the same testimony.'

We think this is true because we note that the careful trial court charged the jury fully and fairly relative to the right of self-defense, not only against actual but also as to apparent danger as viewed from the appellant's standpoint alone. He also charged the law relative to threats. We think this was all that he was entitled to under the testimony.

The court's charge relative to the question of murder without malice is also criticised, and it is insisted that the same was held to be error in the case of Ballew v. State, 139 Tex.Cr.R. 636, 141 S.W.2d 654, and also in Brewer v. State, 143 Tex.Cr.R. 136, 157 S.W.2d 388. We have examined the charge and it seems to be in line with that approved in Davis v. State, 110 Tex.Cr.R. 605, 10 S.W.2d 116 in the opinion written by Presiding Judge Hawkins. It seems to us that the charge complained of demands: first, that the jury must find appellant guilty of unlawfully killing the...