Watson v. State, 18499.
| Decision Date | 23 December 1936 |
| Docket Number | No. 18499.,18499. |
| Citation | 104 S.W.2d 27 |
| Parties | WATSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Montague County; Vincent Stine, Judge.
Will Watson was convicted of murder with malice aforethought, and he appeals.
Reversed and remanded on motion for rehearing.
T. H. Yarbrough and Donald, Kearby & Donald, all of Bowie, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Appellant was convicted of murder with malice aforethought, and his punishment was assessed at confinement in the state penitentiary for a term of ten years.
The testimony adduced upon the trial shows that appellant and Charlie Roe owned adjoining farms; that Dave Sheen the father of J. D. and Elmer Sheen, had rented the farm from Mr. Roe and was occupying it with his family; that there was an old road leading from appellant's premises over the land of Charlie Roe to Dye Mound which appellant and his grantor had used for more than twenty years. Sheen had forbidden appellant to use the passageway or easement and wired up the gate. On several occasions when appellant found the gate closed he cut the wires and passed on through. On one occasion, when he started through and found the gate closed up, he met Mr. Sheen and two of his sons at or near the gate, and some little trouble arose and threats were made. About two or three weeks after this occurrence, but before the fatal difficulty, appellant went to see the county attorney and the sheriff to get their advice. They promised him that they would come down at the end of that week and try to settle the difference, but by reason of excessive rains, which made the roads heavy, they did not go. On the 19th day of May, 1935, when appellant on horseback started up the old road across the premises occupied by Dave Sheen, the deceased and his brother saw him leave his home and they went to the gate to intercept him. There they used some abusive language towards and concerning him, which precipitated a difficulty, terminating in the fatal shooting of J. D. Sheen and the infliction of serious wounds upon the person of Elmer Sheen by the appellant.
By bills of exception Nos. 1 and 2 appellant complains of paragraph 9 of the court's main charge wherein the court instructed the jury as follows: "* * * Homicide is justifiable in the protection of a person against any other unlawful attack besides such as would produce death or serious bodily injury, but in such cases all other means at hand, as the situation reasonably appears to the defendant at the time, as viewed from his standpoint, must be resorted to for the prevention of the injury," etc.
Appellant's contention is that the charge is on the weight of the evidence, that such issue is not raised and might be construed by the jury that the court was of the opinion that there was created in the appellant's mind an apprehension that he was being unlawfully attacked in a milder form which is contrary to his testimony. We think there is testimony in the record which justifies such an instruction.
Appellant testified to an attack on him by Elmer Sheen who he said caught the bridle on his horse with one hand and with some kind of an instrument in the other hand inflicted a wound upon his, appellant's, cheek, from which a few drops of blood trickled down his face; that at the time he was so assaulted he fired the first shot at Elmer and when he, Elmer, fell against the horse he fired the second shot, and that while he was shooting at Elmer, the deceased was assaulting him with a green stick. Appellant further testified that after he had passed through the gate he saw J. D. Sheen and Elmer Sheen coming towards him; that in passing he spoke to them; that after he had passed them, J. D. said, "Are you going to let him get by with it," to which Elmer replied, "Yes, let the damned so____ o____ b____ go," that when this was spoken his pony suddenly turned, started back towards the boys, and when practically up to them his horse stopped, and Elmer grabbed the head stall or reins up near the bridle bit, struck him, appellant, on the cheek with some instrument (which he did not see and could not describe); that he did not try to run over appellant, did not try to kick him loose, and did not do anything to protect himself other than to start shooting.
No weapon of any kind was found on the person of either Elmer or J. D. Sheen. The only thing that was found on the battle ground with which the assault might have been made was a small pair of pliers.
Appellant further testified that at a former time he met Dave Sheen, J. D. Sheen, and King Sheen at the gate which they had closed with wire; that he had dismounted and tried to stamp the wire loose; that on this occasion each of the three had a club, but he was not afraid at that time of receiving any serious bodily injury at their hands. However, at the time he killed J. D. Sheen, he was attacked by only two of the parties, one having a club and the other a pair of small pliers. Just why he expected to be killed or receive serious bodily injury on this occasion and not on the former when he was attacked by three parties was not explained by him.
The court, however, fully instructed the jury on the law of self-defense as follows: "That if from the acts of J. D. Sheen and Elmer Sheen, or either of them, or from their words coupled with the acts of J. D. Sheen and Elmer Sheen, or either of them, there was created in the mind of the defendant a reasonable apprehension that he, the defendant, was in danger of losing his life or suffering serious bodily injury at the hands of J. D. and Elmer Sheen, or either of them, that the defendant had a right to defend himself from such danger or apparent danger, and that it is not necessary to the right of self-defense that the danger should in fact exist, but if it reasonably appeared to the defendant at the time viewed from his standpoint, that such danger existed he would have the same right to defend against it as he would have, had the danger been real," etc.
It occurs to us that the facts in this case were such as justified the court in submitting the charge complained of. It was a matter for the jury to determine from all of the facts and circumstances before them whether the assault or threatened assault upon the appellant was such as created in his mind, as viewed from his standpoint at the time, a reasonable apprehension or fear of death or serious bodily injury such as would justify him in killing either or both of his assailants, or whether the attack was of a milder nature.
By bills of exception Nos. 5 and 6 appellant objected to the introduction of photographs taken of the scene of the alleged homicide, on the ground that the pictures were made subsequent to the alleged homicide in the absence of the defendant, that the same were hearsay, immaterial, and irrelevant, and the positions taken for their exposures were entirely in the control of the state's counsel, and because it was not shown that the same condition existed at the time of making the pictures as existed at the time of the transaction which they seek to illustrate. The testimony offered in connection with the pictures shows that the homicide occurred about the 19th of May, that the pictures were taken some time in June, and that the ground or territory which the pictures sought to reproduce was in the same condition at the time the pictures were taken as it was at the time of the homicide. We think that under such a state of facts the photographs were properly received as evidence. However, the objection went more to the weight than to the admissibility thereof.
The matters complained of in bill of exception No. 7 fail to show any reversible error, inasmuch as the court advised counsel for the appellant that he would permit them to elicit all the testimony sought to be elicited from the witness except his self-serving declaration.
Bill of exception No. 8 reflects the following occurrence: The state offered Dick Lawrence, a deputy sheriff, as a witness and proved by him that a capias had been issued by the clerk of the district court of said county for the arrest of appellant on a charge of assault with intent to murder Elmer Sheen — to which the appellant objected and the court promptly sustained the appellant's objection, and instructed the jury not to consider the same for any purpose...
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