Banks v. State

¶1OPINION IN DENIAL OF STATE’S MOTION FOR LEAVE TO FILE A MOTION FOR REHEARING

¶2concurring.

¶3Almost two years after the effective date of the present penal code, Young v. State, 530 S.W.2d 120 (Tex.Cr.App.1975) was unanimously decided by the Court. The State Prosecuting Attorney presented the contention that “since the Legislature saw fit to include the law on provoking the difficulty but failed to include any provision on the right of an actor (accused) to arm himself and seek an explanation, such right no longer exists,” id. at 123. Rejecting it, the Court did not agree that either the provisions or the legislative history indicate that such was the intention of the Legislature. Accordingly, the Court concluded:

“We decline to overrule the rule the State seeks to abolish which has long been part of the case or decisional law of this State ... [citations omitted] and see no conflict of such rule with the new Penal Code.” Ibid.

¶4A mere reiteration of the same contention eight years later is not enough to justify one who was not a member of the Court then to say now that Young v. State, supra, was wrongly decided. Absent new evidence of legislative purpose compelling a different conclusion, the doctrine of stare decisis obliges a successor Judge to adhere to findings and holdings of his predecessors.

¶5The District Attorney is content to embrace the dissenting opinion on original submission and to ask rhetorically, “Are we a society governed by law or by the fastest gun?” So long as the law recognizes a general principle of necessity justifying conduct that would otherwise be criminal — a traditional common law defense1 —the answer may be “both.” See, e.g., Armstrong v. State, 635 S.W.2d 810 (Tex.Cr.App.1983).

¶6The State Prosecuting Attorney also commends the dissenting opinion, as well as condemning the requested instruction in question. He contends the instruction is: tantamount to judicial approval of a “right” to violate a criminal statute of this State, *4501.e., V.T.C.A. Penal Code, § 46.02;2 “was never logical;” and is “even more illogical under the new Penal Code.” In essence his position is that “the so-called ‘right’ in question was derived from a frontier tradition of freedom to bear arms ...” (emphasis in original), and that it is now passe.

¶7One of the most succinct statements of the matter is found in Shannon v. State, 35 Tex.Cr.R. 2, 28 S.W. 687 (1894):

“The fact that one with a grievance arms himself, and seeks an interview with the man who wrongs him, is not necessarily a provocation, nor does it place the injured party necessarily in the wrong. He must also, as said by Judge Hurt in Cartwright’s Case, 14 Tex.App. [486] 502, ‘willingly and knowingly use language or do acts reasonably calculated to lead to an affray or deadly conflict;’ and, unless the acts are clearly Calculated or intended to have such an effect, the right of self-defense is not compromitted [sic], even though the party armed himself and went there for the purpose of a difficulty. White’s Case, 23 Tex.App. 154, 164, 3 S.W. 710 [1887].” Id.,28 S.W. at 688.

¶8James M. Hurt was Presiding Judge of the Shannoncourt. He had been a member of the former court of appeals and wrote the opinion not only in Cartwright’s Case, supra, but also White’s Case, supra. In researching the law of selfdefense he often resorted to Horrigan & Thompson, Select American Cases on the Law of Self-Defense, Soule, Thomas & Wentworth (St. Louis 1874) (Hor. & Th.Cas.) and drew from cases and notes therein principles of law he then applied to the cause under consideration. Thus, in Cartwright’s Case, 14 Tex. App. at 499, he cited and discussed Commonwealth v. Selfridge, Hor. & Th.Cas. 1; in White’s Case, 3 S.W. at 713 he mentioned Selfridge’s Case as well as notes to Stoffer’s

¶9Case, [Stoffer v. The State, 15 Ohio State 47 (1864) ], Hor. & Th.Cas. 227.

¶10Self ridge’s Case was tried in 1806 in Boston, Massachusetts. Selfridge was a distinguished member of the Suffolk bar; he occupied the same office with Lemuel Shaw who was to become Chief Justice of Massachusetts. The deceased was Charles Austin, a student of Harvard University and the eighteen year old son of Benjamin Austin, a political writer and active Democratic Party politician, with whom Selfridge was having a bitter public disagreement. The fatal encounter occurred near Half Court Square in what seems from the report to be practically downtown Boston. It was undisputed that Selfridge shot Charles Austin with a pistol which, his counsel argued, was his practice to carry, upon being attacked with a cane by young Austin. The jury was fully charged on the law of selfdefense including provoking the difficulty, and the court concluded that part of the charge with the following assurances:

“The principles which I have thus stated are recognized by all the books which have been read, and are founded in the natural and civil rights, and in the social duties of man.” Hor. & Th.Cas., at 27.

¶11The trial judge made no allusion to “a frontier tradition of freedom to bear arms” in his charge to a jury of Bostonians. Nor did Presiding Judge Hurt, or for that matter any other judge of the court or of the former court of appeals, ever find such a tradition and rely on it in reaching the conclusion that a jury instructed on provoking difficulty should also be told that the right to selfdefense is not necessarily abridged by the fact that he carried arms to the scene of the difficulty. The probable reason is that the notion was not conceived by Texas judges, but may be traced back at least to the common law as expounded by Blackstone.3

¶12*451Nevertheless, the State Prosecuting Attorney has discovered that from the Act of April 12, 1871 until deleted by Acts 1918, 35th Leg., 4th C.S., ch. 91, the statute denouncing bearing of arms exempted, inter alia, “one who has reasonable ground for fearing an unlawful attack upon his person, and the danger is so imminent and threatening as not to admit of the arrest of the party about to make such attack, upon legal process.” From this he suggests that after 1918 judicial recognition of a “right” to arm oneself when going to seek an explanation, being “so blatantly obnoxious to an unambiguous statute,” is “inexcusable.”

¶13The State misapprehends the statutory exception. “A party may act in self-defense in a difficulty, and at the same time violate the law against carrying a pistol.” Woodroe v. State, 50 Tex.Cr.R. 212, 96 S.W. 30, 31 (1906). At its inception the statute itself provided a defense to a charge of unlawfully carrying on or about his person, saddle or saddle bags one or more of the weapons denounced by law: “pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife manufactured or sold for the purposes of offense or defense ...,” Act of April 12, 1871, 6 Gammel’s Laws of Texas 927. Section 2 required an accused who raised defensively that he “was in danger of an attack on his person” to show “that such danger was immediate and pressing, and was of such a nature as to alarm a person of ordinary courage,” and that the weapon carried by him was “borne openly and not concealed beneath the clothing;” however, he lost the defense should it appear that “this danger had its origin in a difficulty first commenced by the accused,” ibid.4The law did not prohibit carrying a pistol unless in a manner proscribed by the statute. Lewis v. The State, 2 Tex.App. 26, 30 (1877); see also Cathey v. State, 23 Tex.App. 492, 5 S.W. 137 (1887).

¶14When the statute was revised along with other provisions of the penal code in 1879, the defense, or exception as it was sometimes called, was more succinctly stated. Thus the prohibition did not apply “to one who has reasonable ground for fearing an unlawful attack on his person, and the danger is so imminent and threatening as not to admit of the arrest of the party about to make such attack upon legal process.” Article 319, P.C. 1879. Subsequent penal code revisions in 1895 and 1911 made no change of substance in what became Article 339 and Article 476, respectively.

¶15While the exception remained in the statute whether evidence warranted a conviction or whether an accused was entitled to an appropriate instruction in the charge of the trial court depended, of course, on the state of evidence adduced. Ordinarily the key test was just how “imminent and threatening” the danger of an attack on his person appeared to be at the time an accused took up his weapon.5 So, rarely was *452there an occasion in such cases to discuss the doctrine of provoking the difficulty, but there are at least two that do — with mixed understandings.

¶16First, without mentioning the statutory exemption at all, the Court held in Quinn v. State, 50 Tex.Cr.App. 209, 96 S.W. 33 (1906), that one charged with unlawfully carrying a pistol who, while on his way home with it, stopped at the house of and called out another to obtain an explanation of alleged insulting conduct toward his wife, was entitled to a charge to the effect that he “had a right to stop by Nicholson’s to ask an explanation, and to defend himself with a pistol, if attacked,” because “that was the defense claimed by appellant,” id., at 34.

¶17On the other hand, in Ballard v. State, 74 Tex.Cr.R. 110, 167 S.W. 340 (1914), the accused contended he had the right to arm himself with a pistol and hunt a person who had had adulterous relations with him to meet and resist whatever might arise when he found his prey and demanded an explanation, but the Court held such conduct of the other person “does not justify one in carrying a pistol on and about his person,” for that “is not one of the exceptions enumerated by the statute, and the court has no authority to engraft others therein.” However, the Court further opined:

“When he finds deceased, the facts and circumstances arising at the time may justify the homicide; but it does not excuse nor justify the carrying of the pistol.” Id., at 340.

¶18After the exception was removed in 1918 the Court held that the defense formerly recognized by law no longer existed. Slack v. State, 107 Tex.Cr.R. 263, 296 S.W. 309, 310 (1927), and Davenport v. State, 94 Tex.Cr.R. 38, 250 S.W. 179, 180 (1923) (Opinion on Rehearing). But it does not follow that longstanding and applied principles of law of selfdefense then lost vitality. The same Judges who decided Slackand Davenport, supra, wrote and approved opinion after opinion requiring a proper instruction on the right to arm oneself when the trial court limited and qualified an accused’s right to selfdefense by charging on his provoking the difficulty: Carlile v. State, 96 Tex.Cr.R. 37, 255 S.W. 990 (1923); Moore v. State, 96 Tex.Cr.R. 493,258 S.W. 476 (1924); Clark v. State, 99 Tex.Cr.R. 80, 268 S.W. 465 (1925); Dunne v. State, 102 Tex.Cr.R. 435, 278 S.W. 201 (1925); Couch v. State, 103 Tex.Cr.R. 188, 279 S.W. 821, 824, 825 (1925-1926) are representative. As shown ante, that one violates the law in carrying a pistol or other prohibited weapon has never meant that he forfeits his right to use the pistol in selfdefense.6Porter v. State, 152 Tex.Cr.R. 540, 215 S.W.2d 889, 890-891 (1948) states “the true rule,” 4 Branch’s Annotated Penal Code (2nd Ed.) 453, § 2128. That is,

“[I]f the court’s instruction limits accused right of self-defense by a charge on provoking the difficulty, ... then the jury should be advised in a proper instruction under the facts that accused’s right of self-defense would not necessarily be abridged by the fact that he carried arms to the scene of the difficulty.”

¶19As in Gassett v. State, 587 S.W.2d 695 (Tex.Cr.App.1979), so in the case at bar the opinion on original submission correctly found that Young v. State, supra, is disposi-tive.

¶20Accordingly, I concur in the denial of the State’s motion for leave to file a motion for rehearing.