110 Tex. Crim. 243 - Borroum v. State

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CONCURRING OPINION. Without restating the testimony, I desire to supplement the opinion rendered with the following statement of the reasons which impel me to concur in the overruling of the motion for rehearing: I gather from the testimony that it was the appellant who first mentioned to Cox the subject-matter of the quarrel, namely, the mules topping the fence. It was he who first used harsh language; that when the deceased replied in kind, the appellant ran to his house and procured his gun. When he returned the deceased was milking his cow. When the appellant was a short distance from the cow-pen, he was asked by the deceased not to shoot and said that he would not shoot, but would not be hit by an iron bar. Cox then expressed a wish to talk it over, but this effort was without success. Appellant entered the pen, first setting his gun down and afterwards picking it up and going around the barn to a place, the exact locality of which I do not understand, thought it seems not to have been where the appellant milked his cow, as he did not engage in that enterprise but held his gun in his hands until his wife, observing Cox while milking leaning an iron bar on his knee, rushed to the appellant and besought him to leave and made an effort to take his gun away from him. In the course of that effort *249 the gun was twice discharged, the bullets (at least one of them), going in the direction of the deceased. Appellant reloaded the gun after each shot. Noticing the consternation on his wife's countenance and observing Cox approaching him with the iron bar in his band, stating that the appellant did not have the nerve to shoot, he did shoot when Cox got near to him. In approaching it seems that Cox would have to cross a drain seven feet wide and travel a distance of about thirty-eight feet from the place where he was milking his cow, or at least where the body lay. From the record it seems that Cox did nothing, even after the appellant came to the pen and stood by with his gun in his hand; that the deceased continued milking and did nothing offensive except to pick up the iron bar and lay it across or on his knee. Something occurred which caused the appellant's wife to become excited and seize the gun. It fired twice. It was not until then that the deceased made any offensive movement. His offensive movement was not responsible for the shots which had been fired. Appellant knew that the firing of the shots was accidental. At least, he claims that they were so fired, but he did nothing to advise Cox of that fact, but when Cox, in response to the shots that were fired, left his cow and approached the appellant with the iron bar, the appellant shot him. It seems to me that under the circumstances, if it be granted that the shots were fired accidentally, that before shooting Cox, the appellant should have done some act to give notice that the firing of the shots was not intended to take the life of Cox. In other words, the whole picture as portrayed by the appellant and his wife, especially his failure to tell Cox that the shots were fired accidentally or to make any effort to inform him of that fact, characterizes the appellant's conduct such as did not justify him in shooting the deceased. After returning to the pen, the appellant bore a hostile appearance. This is manifest by the conduct of his wife in seeking to disarm him. That the conduct of the appellant from the time he returned until the fatal shots were fired was hostile seems apparent from the record; that after the appellant came back with his gun, the conduct of the deceased was inoffensive up to a moment before he was shot. According to the appellant and his wife, the fatal shots were preceded by two other shots. If they were accidentally fired, the appellant knew it, and the deceased did not know it. That the firing of these shots was calculated to alarm the deceased and suggest the necessity of doing something to defend his life is self-evident. If the appellant's design was inoffensive or if the shots were accidentally fired, he *250 should not have kept silent on the subject. The firing of the shots, together with the other conduct of the appellant described by him, was such as to cause the deceased to take some steps to save his life. If, in fact, the deceased did attack the appellant, he had no perfect right to kill the deceased. The facts apparently bring the case under the influence of a principle of law which controls the decision of many cases heretofore rendered. Among them are the following: Tate v. State, 33 S.W. Rep. 121; Bennett v. State, 95 Tex. Crim. 70; Hollman v. State, 87 Tex.Crim. Rep.; Winters v. State, 51 S.W. Rep. 1110; Gaines v. State, 58 Tex. Crim. 631; McGrew v. State, 49 S.W. Rep. 228; Coleman v. State, 49 Tex.Crim. Rep.; Smart v. State, 101 S.W. Rep. 990; Casey v. State, 50 Tex.Crim. Rep.; Rogers v. State, 71 Tex.Crim. Rep.; Taylor v. State, 47 Tex. Crim. 122; Beck v. State, 85 Tex.Crim. Rep.; Thumm v. State,24 Tex. Crim. 703; Melton v. State, 24 Tex.Crim. Rep..