White v. State

• Decision Date: 17 November 1920
• Docket Number: (No. 5972.)
• Parties: WHITE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 511

225 S.W. 511

88 Tex. Cr. R. 159

WHITE v. STATE.

(No. 5972.)

Court of Criminal Appeals of Texas.

November 17, 1920.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

Onie White was convicted of murder, and he appeals. Reversed and remanded.

Carl T. Harper, H. S. Morehead, of Franklin, and A. F. Brigance and Haynes Shannon, both of Navasota, and E. A. Berry, of Houston, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder, and his punishment assessed at ten years in the penitentiary. He and his brother Horace White were indicted in Grimes county for the murder of Dr. B. Harrison. The case was transferred on change of venue to Harris county. A severance was had, and appellant tried and convicted.

The state's case, briefly, is that the deceased was riding along the road in the direction of where appellant lived, and where appellant, his brother, and another man were at work clearing timbered land; that the road deceased was traveling was near where they were at work, and as he approached they separated, Horace White going in one direction towards his home, which was nearly a mile away, and appellant going to his house, which was within 100 yards; that Horace White and deceased met within about 50 yards of appellant's residence and in view as well as in hearing distance of the house; that deceased stopped his horse, and immediately thereafter Horace White shot the horse which deceased was riding, and deceased fell or jumped from the horse and ran down the road, either in front of or in company with Horace White, and that while they were running down the road or about where they stopped appellant came to them with a shotgun, and Horace White took the gun from his brother and shot the deceased. There seems to have been no motive shown by the state for the difficulty, nor did they show any words that were passed between deceased and Horace White, or between deceased and Onie White, prior to the time the fatal shot was fired. The state's testimony further shows that immediately after the difficulty the first party arriving upon the scene of the killing found a pistol which had been discharged lying by the hand of deceased, and that the trigger guard on said pistol was bent in such a manner as to make it impossible to shoot the pistol.

Appellant's testimony is to the effect: That he and his brother were clearing land about 100 yards from appellant's house, and that about the time the deceased came in sight of where they were at work, and before either appellant or his brother had seen him, they ceased work, and appellant started to his house for the purpose of getting matches to build a fire to burn brush they had piled and that Horace White, his brother, started to his home for the purpose of feeding his cattle some moss. That they separated, appellant going to his house and Horace White going in the direction of his home. That deceased and Horace White met, and appellant heard deceased say to his brother Horace, "Where are you going, you little thieving son of a bitch?" to which question Horace answered, "I am going home," and deceased then said, "Do you think you can make the tracks you made Jim Wells make?" Horace replied, "I don't know that I have to." Deceased then said, "I will see if you can," reached in his pocket and pulled his pistol, and when he did this appellant ran in his house, which was about 50 yards from the scene of the difficulty, got his gun, and about that time he heard gunshots, and when he got back on the gallery where he could see deceased and his brother they were in a corner of the fence fighting. That he was excited and ran there as rapidly as he could, and told deceased to turn his brother loose, and deceased replied, "No, I will not turn him loose; I am going to do him like I did your damn father." At the time deceased made this statement he had hold of appellant's brother with one hand and was pointing his pistol toward his stomach with the other, and was trying to pull the trigger, and when deceased said, "No, I will not turn him loose, I am going to do him like I did your damn father," appellant shot. That this happened in about 50 yards, and within sight and hearing, of appellant's residence. Appellant further proved that at the time he shot deceased his mind was greatly excited, and that he shot while in this condition because he believed deceased was trying to kill his brother.

The court submitted the issues of murder and self-defense, omitting a charge on manslaughter. Appellant reserved exception to the court's failure to charge on manslaughter, and wrote out in full an elaborate charge upon the subject, and presented it to the court, which was refused. To these matters timely exception was reserved. He also took exception to the court's charge upon the use of a deadly weapon and the legal presumption arising therefrom. The court charged with reference to the use of a deadly weapon in stereotyped form, to the effect that from the use of such weapon the law would presume that he intended to kill or inflict serious bodily injury, and under this view of the law the jury would acquit if they believed the theory of self-defense. Exception was taken to this charge, and requested instructions refused. The requested instruction carried the further idea that the court should have charged the jury that this law would apply to the defendant, although the pistol was broken, it being unknown to defendant that the pistol was in that condition, and that when appellant came upon the scene deceased had his brother by one hand and was trying to shoot him in the stomach with his pistol. The facts show conclusively by the state's witnesses that the pistol was in the condition as above stated, and could not be fired. Appellant contends he had a right to have the jury instructed under such circumstances that defendant's plea of defense of his brother would not be impaired by reason of the fact that the pistol was broken. We are of opinion that appellant's contention is correct. To him the condition of the pistol was unknown, and the matter presented itself to him that deceased was trying to kill his brother with the pistol as he approached with the shotgun. The theory of self-defense must be viewed from the defendant's standpoint, and not in the light of subsequent events and facts. Whether the jury, in the light of subsequent events, believed appellant's evidence with reference to the condition of his brother and deceased at the time he came upon the scene would make no difference, so far as his view of it was concerned, in passing upon this issue. They must view it from the standpoint as it presented itself to defendant's mind at the time. It sometimes happens that the facts as presented at the time the accused acts are not really as they appeared to him in the light of a fuller development of the transaction, but they must be viewed as the matter presented itself to him at the time he acted. It is the motive, intent, and purpose then operating upon his mind, that controls his action, not only at the time, but should control in the verdict of the jury and in the charge of the court. Appellant was entitled to the charge refused on this phase of the testimony. See Ward v. State, 30 Tex. App. 689, 18 S. W. 793; Burton v. State, 3 Tex. App. 410, 30 Am. Rep. 146; Caldwell v. State, 5 Tex. 20; Cromwell v. State, 60 Tex. Cr. R. 183, 131 S. W. 595; Myers v. State, 72 Tex. Cr. R. 630, 163 S. W. 432.

The court failed to charge upon manslaughter. Appellant reserved an exception, and requested a very full charge embodying this phase of the law, which was refused by the court. This issue was clearly and definitely raised by this testimony. The state's theory was murder. Their contention was that appellant and his brother saw deceased approaching, and they separated, appellant going to his...