Woodring v. State

• Decision Date: 06 December 1893
• Citation: 24 S.W. 293
• Parties: WOODRING v. STATE.
• Court: Texas Court of Criminal Appeals

24 S.W. 293

WOODRING v. STATE.

Court of Criminal Appeals of Texas.

December 6, 1893.

Appeal from district court, Fisher county; C. P. Woodruff, Judge.

R. P. Woodring was convicted of murder in the second degree, and appeals. Reversed.

C. R. Breedlove, Thurmond & Yantis, and J. F. Cunningham, for the appellant. R. L. Henry, Asst. Atty. Gen., for the State.

HURT, P. J.

Appellant was convicted for the murder of Thomas Lowe; the verdict and judgment being for murder of the second degree, with confinement in the penitentiary for 30 years.

We deem it necessary to notice but two matters:

1. The homicide occurred in the unorganized county of Kent, which was (at the time of the homicide) attached to Scurrey. The case was sent to Fisher county on change of venue. When the venue was changed to Fisher county, Kent county was still unorganized. In the district court of Fisher, appellant, in writing, moved the court to send the cause to Kent county, it being then organized. The motion was refused, and appellant reserved his bill of exception. In this there was no error. The case being legally sent to Fisher county by change of venue, it belonged to that county just as if the homicide had occurred there, and the bill of indictment had been originally presented into the district court of Fisher county. The cases cited by appellant are not in point.

2. There are two theories urged below in support of self-defense: (1) That the appellant killed deceased in the protection of his property, or property in his possession. The court instructed the jury upon this theory of the case. (2) That, independent of this phase of the case, appellant was justified, because deceased was making an assault and battery upon him with a hatchet, which endangered his life, or which threatened him with great bodily injury. If appellant relies upon the first theory he must show, or the evidence must show, that he killed while the deceased was in the very act of making the violent attack upon his property, and he must also show that he resorted to all other means to prevent the injury. The rules were given in charge to the jury. On the other hand, if he killed deceased to prevent murder, or to prevent receiving from deceased great bodily harm, which might reasonably result in his death, he would not be required to kill while the deceased was in the very act of killing him, or was in the very act of inflicting great bodily injury upon him; nor would he be required to resort to all other means to prevent murder or the great bodily injury; for, if deceased was in the act of killing defendant or inflicting upon him great bodily injury, or had done some act showing evidently an intent to commit such an offense, the accused could act at once, and with the most effective means. Is this theory presented by evidence with sufficient cogency to require a charge thereon? For the court instructed only upon the first ground, namely, homicide in protection of property. Cockrill states: "The first I saw of Lowe, he came riding up the string of fence, and was in about 40 or 50 yards of us, when he dismounted, and began to take down the fence. I lived with and worked for R. P. Woodring. We lived about one-half mile from Thomas Lowe. When I saw him coming I did not know him, and asked Woodring who he was. He said it was Mr. Lowe. I then asked where he supposed Lowe was going, and he said he reckoned he (Lowe) was just riding around. Lowe commenced cutting the fence, and Woodring picked up his tamping pole, — which was about six feet long, and was a...