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76 Tex. Crim. 647

176 S.W 574

Eads v. State

Court of Criminal Appeals of Texas

Decided March 24, 1915

Court of Criminal Appeals of Texas · decided 1915-03-24

<p>1. —Murder—Charge of Court—Actual and Apparent Danger.</p> <p>Where, upon trial of murder, the evidence showed that from the language and acts of deceased viewed in the light of the threats that had been com-. municated to defendant, the latter thought his life in danger, etc., and the court charged the jury that if deceased made an attack on the defendant for the purpose of taking life or inflicting serious bodily injury, or if from acts or words of the deceased at the time, it then reasonably appeared to the defendant that he was in danger, etc., even though there was no actual danger in fact, but only apparent danger, from which it appeared to the defendant, etc., that his life was in danger, etc., to acquit the defendant, such charge did not limit his right of self-defense to an actual attack, and there was no error on that ground. Davidson, Judge, dissenting.</p> <p>2. —Same—Charge of Court—Threats.</p> <p>Where, upon trial of murder, the defendant claimed threats by the deceased, which the State contested, and the court charged the jury that if they found from the evidence that the deceased made threats against the life of the •defendant and that such threats had been communicated to him, etc., or if they found that report of threats had been communicated to the defendant, whether they were actually made or not, etc., to acquit the defendant, such •charge did not require the jury that the deceased actually made the threats. Davidson, Judge, dissenting.</p> <p>3. —Same—Charge of Court—No' Conflict.</p> <p>Where, upon trial of murder, the court in submitting his charge on self-defense on the issue of threats did not require the jury to find that deceased actually made the threats, when the charge is carefully read, and also submitted a special charge requested by the defense in which he emphasized the defendant’s right to act upon threats as though they had been actually made, although they had in fact not been made, the contention that there was a conflict in the court’s charge is untenable.</p> <p>4. —Same—Implied Malice—Charge of Court.</p> <p>Where defendant had been tried under the old law of murder and acquitted of express malice or murder in the first degree, but found guilty of implied malice, or murder in the second degree, and the judgment was set aside, he could again be tried for' murder upon implied malice.</p> <p>5. —Same—Statutes , Construed—Legislative Intent.</p> <p>The Legislature has never repealed the law defining a killing upon implied malice as murder, but merely consolidated and defined as one offense murder upon express and upon implied malice.</p> <p>•6.—Same—Evidence—General Reputation.</p> <p>Where, upon trial of murder, different witnesses were permitted to testify that the reputation of defendant’s wife for virtue and chastity was good, there was no error, inasmuch as defendant testified to an act of carnal intercourse between deceased and defendant’s wife, the defendant placing the transaction at such time and place that no other witness could have seen the same, and not calling his wife as a witness. Following Cameron v. State, 69 Texas Crim. Rep., 439.</p> <p>7.—Same—Evidence—Circumstances.</p> <p>Where, upon trial of murder, defendant had not yet testified that he had killed the deceased, and the State’s case at that juncture depended upon circumstantial evidence, there was no error in admitting testimony that the sheriff. after the arrest of the defendant made search for arms and found a pistol and some cartridges in the loft of defendant’s premises.</p> <p>8. —Same—Evidence—Undisclosed Motive of Deceased.</p> <p>Upon trial of murder, there was no error in admitting testimony that a certain store building was used for lodge purposes and that a lodge met there on the night of the killing, and deceased was on his way to the lodge; the defendant’s objection simply being that such testimony was irrelevant and prejudicial to the defendant, but none of the jurors belonging to any lodge, and there being no objection as to the undisclosed motive of the deceased. Following Carter v. State, 37 Texas Crim. Rep., 403, and other cases. Davidson, Judge, dissenting.</p> <p>9. —Same—Evidence—Circumstances—Motive.</p> <p>Where defendant, upon trial of murder, testified to certain hostile acts of deceased upon which he relied as a justification, testimony by the State that deceased was on his way to a meeting of the lodge could not, and would not, in the least, tend to explain any of said hostile acts, and-in the absence of an objection that defendant was not aware that deceased traveled this road on his way to the lodge and such facts were unknown to him, there was no reversible error. Davidson, Judge, dissenting.</p> <p>10. —Same—Actual Attack—Apparent Danger.</p> <p>Where the court’s charge did not confine the danger upon actual attack, but upon reasonable appearances of danger, as, it appeared to the defendant, a criticism that defendant’s right of self-defense was made to depend upon actual attack is not well taken. Davidson, Judge, dissenting.</p> <p>11. —Same—Threats—Charge of Court.</p> <p>Where, upon trial of murder, the court did not require the jury thai the alleged threats by the deceased against the defendant had been actually made, but instructed them if threats had been communicated to the defendant, whether actually made or not, he would have the right to shoot and kill, if deceased at the time, by his acts or words manifested an intention to kill defendant or do him some serious bodily injury, there was no' error; nor was this charge in any conflict 'with the requested charge submitted on' the same subject. Following Buckner v. State, 55 Texas Crim. Rep., 511, and other cases. Davidson, Judge, dissenting.</p> <p>13.—Same—Evidence—Motive of Deceased.</p> <p>Upon trial of murder, there was no error in admitting testimony that deceased was on the way to attend a lodge at the time of the killing, there being no objection on the ground that the, motive of the deceased was unknown to the defendant. Following McGrath v. State, 35 Texas Crim. Rep., 413, and other cases. Davidson, Judge, dissenting.</p> <p>13. —Same—Rule Stated.</p> <p>Where the objection is to the admissibility of testimony, the very ground of objection should be stated, and grounds not stated can not be considered on appeal. Following McGlasson v. State, 38 Texas Crim. Rep., 351, and other cases.</p> <p>14. —Same—Stating Facts in Opinion.</p> <p>Where, in the motion for rehearing, exception was taken to the court’s statement in the opinion as to the State’s theory that defendant took a certain road home, etc., and hid himself in a depression, etc., and such statement was borne out by the facts, there was no error; besides, this question had no bearing on the questions raised on appeal.</p>

Decided 1915-03-24

¶1 on rehearing.

¶2 May 19, 1915.

HARPER, Judge.

¶3 Appellant has filed a motion for rehearing herein, and his counsel have filed an able brief in support thereof. The earnest insistence of counsel, and the fact that our senior justice, Judge Davidson, has filed a dissenting opinion, has caused us to give to the record, the argument of counsel, and the authorities cited, most careful and thoughtful study.

¶4 The first ground complains of the charge of the court on self-defense in two particulars: “First, the charge makes the right of the defendant to depend upon actual attack made by the deceased, and, second, the charge complained of only required the jury to believe from the evidence that defendant killed deceased, Hopkins, and only required the jury to believe that deceased made an attack on the defendant that indicated a purpose upon the part of the deceased to take the life of defendant.” If these criticisms of the charge are just, then the argument of appellant would be sound, but the charge, copied in the original opinion, shows that the court instructed the jury: “If from the acts and words of the deceased at the time it then reasonably appeared to defendant that he was in danger of losing his life, or of suffering serious bodily injury at the hands of the deceased, even though there was no actual danger in fact, but only apparent danger, and that such danger reasonably appeared to the defendant to be imminent and pressing, viewing the matter from the standpoint of the defendant alone, and in the light of the circumstances as they reasonably appeared to the defendant, and under such circumstances defendant shot and killed A. J. Hopkins, you should acquit the defendant.” This is not a charge upon actual danger, but upon reasonable appearances of danger as it appeared to the defendant, and not, as contended, as it appeared to the jury. The charge itself answers the criticisms and shows them not to be well founded. It does not limit appellant’s right to act from actual danger alone, but authorizes an acquittal of appellant, if from the acts and words of deceased it reasonably appeared to him (appellant) that he was in danger of losing his life or in danger of suffering serious bodily injury at the hands of deceased.

¶5 It is next contended that the court’s charge on threats “makes the right of appellant’s right of self-defense depend upon the deceased putting actual threats into execution, and that threats had in fact been *658 made.” We would say again, if the charge does do so, it is error, but we do not think the charge is subject to any such construction. In this instance, as in the other, this paragraph of the charge is copied in full in the original opinion, and it instructs the jury: “If you shall find that report of threats had been communicated to defendant, whether they were actually made or not, and you find at the time of the homicide, if any, the deceased did some act which then reasonably indicated to the defendant that he was then in imminent and pressing danger at the hands of deceased of losing his life, or of suffering serious bodily injury, and that deceased was then about to put such threats into execution, and acting upon such danger or apparent danger, as it reasonably appeared, to the defendant at the time, viewed from his standpoint, and under such circumstances he shot and killed the deceased, he would be justified and you should acquit the defendant.” This excerpt shows that the court did not require the jury to find that the threats had been actually made, but instructed them if threats had been communicated to defendant, whether actually made or not, be would have the right to shoot and kill if deceased at the time by his acts or words manifested an intention to kill him or do him serious bodily injury. Nor is this charge in any ways in conflict with the special charge requested and" given, but the special charge is but supplemental to this charge, and emphasizes the fact that defendant had the right to act if threats had been communicated to him, and he was led by the acts and conduct of deceased, in the light of the communicated threats, to believe his life was in danger. The only authority that appellant cites us to is Buckner v. State, 55 Texas Crim. Rep., 511, opinion on motion for rehearing. With the law as announced in the Buckner case, we agree, as is manifest by our opinion on the former appeal in this case reported in 74 Texas Crim. Rep., 628. In the Buckner case, supra, the court instructed the jury, “if you believe the deceased had made such threats,” etc. In this case the' court instructs the jury, “if you find that report of threats had been communicated to the defendant, whether they were actually made or not.” There appears to be no difference between appellant and this court on the law, but rather on the construction to be given language used by the court. A reading of the charge on this matter, copied in the original opinion, will, we think, demonstrate that the construction attempted to be placed by appellant on the language used by the court is untenable, and the charge of the court is in strict conformity with the law as announced in the Buckner case, and by this court on the former appeal in this case, and in all cases decided by this court so far as we are aware.

¶6 In the next place appellant contends that we erred in holding that the lower court committed no error in admitting the evidence of the witnesses Light and Wall, over the objections then made, appellant admitting that no objection was made that appellant did not know of deceased’s custom in going to the lodge, and did not object that the motive of deceased in going this road was unknown to him, but he contends that whether he made such objection at the time or not, if *659 he now calls our attention to such objection to the testimony we ought to hold that the trial court committed error. To do so would overrule every decision heretofore rendered by this court. In McGrath v. State, 35 Texas Crim. Rep., 413, this court held: “Where the objection is to the admissibility of testimony, the very ground of objection should be stated, and that the specified ground of objection should be stated.” In McGlasson v. State, 38 Texas Crim. Rep., 351, it is held that a bill of exceptions must disclose the ground or grounds of objection to the testimony, and grounds not stated are not entitled to be considered on appeal, citing Willson’s Crim. Proc., sec. 2516, and authorities there cited, and Cline v. State, 34 Texas Crim. Rep., 347; Buchanan v. State, 24 Texas Crim. App., 195; Smith v. State, 4 Texas Crim. App., 626. This is also the rule of our Supreme Court, it being held that a bill of' exceptions to evidence must state ground of objection to the testimony in order to receive consideration. Coleman v. Smith, 55 Texas, 254; Gulf Ry. v. Brown, 16 Texas Civ. App., 102. And our Court of Civil Appeals hold that “an objection to testimony not shown in the bill of exceptions will be disregarded on appeal.” Fields v. Haley, 52 S. W. Rep., 115. In fact, thig seems to be the universal rule. In Thompson on Trials, section 2786, it is said: “Objections made in the course of the trial must be stated to the trial court and must be incorporated in the bill of exceptions. An appellate court can consider only such objections as were presented to the trial court, and thus brought to its notice for review,” citing authorities from almost every State in the Hnion. We could continue the citation of authorities, but they will be found collated in sections 857 and 1123 of White’s Ann. Proc. The reason is plain, if the objections urged at the time, in the light of the testimony in the case, are not tenable, if the objections sought to be urged in the appellate court for the first .time, had been made in the trial court, they might also have been shown by evidence not to be tenable. It is the objections urged at the time the testimony is offered we are permitted to consider. In the original opinion we demonstrate, we think, the objections in the trial court were not tenable, and this is not contested in the motion for rehearing, but it is only insisted that we should permit them in this court, for the first time, to urge an objection to testimony not offered at the time the testimony was admitted. As before said, to so hold would overrule all the decisions of this court heretofore rendered from the day of its organization, and we are not willing to do so, for we think the rule is a correct one, and the opinions so holding state many sound reasons for doing so. In fact the rules adopted by our Supreme Court provide that “exceptions to the admission of evidence, where the ground of objection is assigned, shall be considered in reference to the objection made to it.”

¶7 These are all the grounds stated in the motion for a rehearing, but in a supplemental argument filed, exception is taken to the statement that the State’s theory was, “that appellant took this road to his home, when there were others leading thereto, hid himself in a depression in. the road, and shot deceased.” The exception made is that the record. *660 does not bear out the deduction “hid himself in a depression in the road.” We have carefully read the record again, and it shows that appellant traveled a road going east from Aberdeen’s store a short distance, then turned south in a lane that would lead to' the home of deceased. In this lane are two depressions, one a very deep one, which the record shows the appellant had got beyond; a second depression, in which some of the witnesses say deceased was lying; others say he was lying just as one would come out of this second depression. Some witnesses say that one traveling this lane going north could not see one in this depression until he got near it; the defendant’s testimony is otherwise, hut it will he noticed that in the opinion we merely stated what was the State’s theory of the case, and this appellant does not question but only insists that the record would show that the killing took place on the brow of the hill, after coming up out of the depression. We make this statement, as appellant’s counsel seem to desire it to he done, hut this fact would have no hearing in passing on the questions raised on this appeal.

¶8 The motion for rehearing is overruled.

¶9 Overruled.

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