Wells v. State

• Decision Date: 15 November 1911
• Citation: 141 S.W. 96
• Parties: WELLS v. STATE.
• Court: Texas Court of Criminal Appeals

141 S.W. 96

WELLS v. STATE.

Court of Criminal Appeals of Texas.

November 15, 1911.

Appeal from District Court, Potter County; J. N. Browning, Judge.

Tom Wells was convicted of manslaughter, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was under an indictment charging murder convicted of manslaughter, and given two years confinement in the penitentiary.

1. Motion to quash the indictment was based on averments that appellant was a negro, and there had been discrimination in Potter county against the negro race in selecting jurors. This was controverted by the state. The judgment recites that, after hearing the evidence, the motion was overruled. The record does not contain a bill of exception on this or any other matter and the evidence introduced, if any was, in regard to the allegations of the motion, is not preserved in the record. We are therefore unable to review that question.

2. The motion for new trial attacks the court's charge, or that portion of the court's charge which submits murder in the first and second degree. A sufficient answer to these criticisms is found in the fact that appellant was acquitted of murder in both degrees and given the minimum punishment for manslaughter.

3. On the question of self-defense the court charged the jury among other things thus: "If from the evidence you believe the defendant killed the said James Reed, but further believe that at the time of so doing the deceased had made an attack or was about to make an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious injury, and that acting under such reasonable expectation or fear viewed from defendant's standpoint, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed, and was making such attack or apparent attack on defendant, and if the weapon used or about to be used by him and the manner of its use were such as were reasonably calculated to produce death or serious bodily injury, viewed from defendant's standpoint, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant." That portion of this charge which submits the presumption from the use or threatened use of the weapon is attacked, in that it places a greater burden upon the defendant than the law places, and required the jury to believe the deceased was armed before the presumption of law would obtain in his favor that deceased intended to inflict death or serious bodily injury. Appellant testified that he believed deceased was armed; that deceased was attempting to enter his house at the time he was shot, and was reaching through a door as if to unlatch it to come in; that he knew deceased had something in his pocket; that he had his hand in his pocket, and under these conditions he shot him.

This charge perhaps was hardly called for by the facts, but appellant, we think, is not in any condition to complain. Deceased was not using a pistol or any deadly weapon, at least there was none in sight. He was making a threatening gesture, which, if appellant believed from his standpoint under those circumstances, he would be entitled to a charge on the law of self-defense, but it may be questioned that he was entitled to the charge requiring the jury to presume that he intended to kill by the use of a deadly weapon. The court properly submitted the law of apparent danger. Of this appellant makes no complaint. Therefore we are of opinion that the charge in regard to the presumption of the use of a deadly weapon or threatened use of it was favorable to defendant, and authorized the jury to believe that if deceased was about to use a deadly weapon, although he had not exhibited any, still they would presume that deceased intended to kill appellant. Under this view of the matter, we are of opinion that the charge was more favorable to appellant than the law justified, and of this he ought not to be heard to complain. If appellant believed deceased was about to use a deadly weapon on him, viewed from his standpoint, as charged by the court, then the jury were instructed they must presume that he intended to kill appellant, or to inflict upon him serious bodily injury. This is carrying the doctrine a long ways and very favorably to the accused.

4. The defense of habitation is criticised. The charge is as follows: "The defendant had...