Bennett v. State

Decided November 1, 1916

Court of Criminal Appeals of Texas · decided 1916-11-01

1. —Murder—Appeal Bond—Recognizance—Jurisdiction. Where, upon trial of murder and a conviction of manslaughter, the appellant instead of entering into a recognizance after giving notice of appeal, entered into an appeal bond while the trial court was still in session for the term, the appeal must be dismissed on motion of the State for want of jurisdiction. 2. —Same—Statutes Construed—Appeal Bond—Recognizance— Signatures. Articles 316 and 317, Code Criminal Procedure, define the terms recognizance and bail bond as used in our code, and one of the differences in the definition of the two terms seems to be that a recognizance is the undertaking of the parties in such casa and is not signed but is made a matter of record in the court, while the bail bond is written out and signed by the defendant and his sureties, and where the instrument in question was in the form of a bail bond, signed by the parties and filed, and was- not entered in the minutes of the court, it must be held to be an appeal bond. Following Maxey v. State, 41 Texas Crim. Eep. 556. 3. —Same—Amendment—New Recognizance—Practice on Appeal. Where the appeal was dismissed because the appellant had entered into an appeal bond instead of a recognizance as required by law, he could not be allowed to amend the bond by entering into and filing a recognizance, as this would not be such an instrument as is authorized by law, and is not supplying a defective recognizance entered into during the term time, and gives this court no jurisdiction of the appeal. Following Johnson v. State, 65 Texas Crim. Eep., 416, 143 S. W. Eep., 1165, and other cases. 4. —Same—Right of Appeal—Nunc Pro Tunc Judgment. Where appellant’s appeal had been dismissed for want of jurisdiction in not filing his recognizance after notice of appeal, and he thereafter filed a motion in the trial court seeking to correct the judgment so as to give him the benefit of the indeterminate sentence law, and the State filed a reply thereto that said judgment and sentence were valid but prayed in the alternative that if the judgment was not correct, that the court enter the true judgment and sentence theretofore rendered, and the court thereupon found that said judgment did not truly record the said judgment and the sentence pronounced at a former term of the courts and defendant excepted and gave notice of appeal to this court; held, that the appellant had the right of appeal therefrom to this court and is not deprived of his right of appeal by reason of the fact that he failed to perfect his appeal from the entry made at the previous term. Following Maes v. State, 13 Texas Crim. App., 85, and other cases. 5. —Same—Rule Stated—Nunc Pro Tunc Judgment—Right of Appeal. It has been the constant practice of the courts to entertain appeals in criminal as well as in civil cases, where the court below, having omitted to cause the entry of the judgment to be made at the proper term, had caused it to be entered nunc pro tune at a subsequent-term. Following Scott v. State, 26 Texas 116, and other cases. 6. —Same—Void Judgment—Nunc Pro Tunc—Statutes Construed. The court’s power to enter a judgment nunc pro tune is independent of article 859, Code Criminal Procedure, and appellant’s contention that an appeal from a judgment entered nunc pro tunc is not maintainable except in cases where it is entered in lieu of a void judgment, or in cases where no judgment is entered at all, is not well taken. Following Eios v. State, 79 Texas Crim. Eep., 89, 183 S. W. Eep., 151, and other cases. Distinguishing Oflield v. State, 61 Texas Crim. Eep., 340, and other cases. 7. —Same—Rule Stated—Right of Appeal From Nunc Pro Tunc Judgment. The rule that where a final judgment nunc pro tunc is entered, it is the conclusion of the trial from which the defendant may prosecute an appeal, is not modified by the case of Ex parte Strey, 28 S. W. Eep., 811, and other cases, and there being nothing in the record to show that appellant has not been in custody, etc., since the entry of the final judgment, the jurisdiction of this court attaches and the case will be considered on its merits. 8. —Same—Evidence—Husband and Wife—Diary—Statutes Construed. • Where upon trial of murder and a conviction of manslaughter the defendant introduced a certain diary kept by his wife to show the illicit relations between herself and the deceased, the State should not have been permitted to introduce a diary kept by defendant’s wife after the homicide, which was calculated to bring the defendant into great disfavor with the jury, and should have been limited under article 811, Code Criminal Procedure, to such matters as were calculated to throw light upon the issues named; neither was the admission of this testimony permissible under the statute, which interdicts communications between husband and wife and, besides, was purely hearsay of a pronounced nature. Following Woodal v. State, 58 Texas Crim. Eep., 513, and other cases. 9. —Same — Self-defense — Charge of Court — Apparent Danger — Deadly Weapon. Where, upon trial of murder, there was no evidence that the deceased had a deadly weapon in his possession at the time he was killed, and the defense was purely one of self-defense upon threats and apparent danger, the court’s charge on deadly weapons and actual danger was improper, and defendant’s requested charge on apparent danger should have been given, and a failure to do so was reversible error. 10. —Same—Charge of Court—Relative Strength of Parties—Disposition of Deceased. Where the question of relative strength of the parties and the character and disposition of the deceased did not enter into the case in any manner, the court should not have submitted a charge thereon. 11. —Same—Self-defense—Threats—Charge of Court—Standpoint of Defendant. The court’s charge on self-defense which confined defendant’s right thereto to the belief of the jury as a predicate for their finding in connection with threats of the deceased, was improper. It is the belief of the defendant at the time which should govern the jury in determining his guilt. ■ 12. —Same—Self-defense—Threats—Charge of Court. Where the court charged self-defense from the standpoint of threats, and the evidence raised the issue of apparent danger independent of the question of threats, the charge on self-defense should have been independent of and disconnected from the charge on threats.

Decided 1916-11-01

¶1Reviewing this case in the light of the State's motion for rehearing, I am fully persuaded that the original opinion written by Judge Morrow is correct. I do not care to discuss the matters in regard to the introduction of parts of the diary of appellant's wife, held to be reversible in the original opinion. The State ought not to be heard to insist upon the right to use those entries expressing her opinion of her husband's guilt, and her wish or desire for his conviction. It certainly can not be the law that she could give her opinion of his guilt, much less her earnest desire for his conviction, as was shown by such entries. Those entries criticising courts and animadverting upon the juries of Bexar County for what she thought to be their derelictions in the acquittal of parties accused of crime and expressing her anxiety and hope for the conviction of her husband and doubt of his conviction on account of those matters, were not admissible. These could not be evidence against appellant from any witness much less from his wife. She could not have testified to these matters had she been placed upon the stand. That this was a grave and serious error will not admit of doubt. She may have believed him guilty and desired his punishment, and may have felt outraged at acquittals of accused persons in Bexar County, but her opinions and feelings could not be shown in evidence. I wish to make these few observations in agreeing to the reversal and in overruling the motion for rehearing.

¶2I wish to make a few observations with reference to the charges of the court and the refusal of special instructions requested by appellant. These charges are sufficiently quoted by Judge Morrow in his original opinion. It will be observed in reading those charges that the court gave first a general abstract definition of self-defense which made no application to the facts. It will be noticed further that applying the law to the case he limited the consideration of the jury to an actual attack, and one "which, from the manner and character of it and the relative strength of the parties and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him," etc. The court further instructed the jury that if in making such attack the weapon used by deceased and the manner of its use was such as was reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or to inflict serious bodily injury. It *674 will be discovered from this charge that the jury was limited to an actual attack; second, to the relative strength of the parties; and, third, that if the weapon used by him was such as was reasonably calculated to produce death or serious bodily harm, then the law presumes that he intended to kill. This charge does not present correctly the rule of apparent danger, therefore the charges requested by appellant presenting that matter should have been given. The evidence does not disclose an actual attack on appellant. Self-defense was predicated alone upon apparent danger and also as viewed in the light of threats. There is no evidence that deceased had a pistol. If he had and exhibited it, we would have presented a different question. Appellant relied upon threats to take his life and a demonstration as he thought to draw a weapon.

¶3The question of relative strength of the parties did not enter into the case, and there is no possible phase of the evidence which would authorize the court to submit this issue; they were not in physical encounter. The question of the relative strength of the parties may sometimes become an important matter but not under the circumstances found in this record. Upon another trial the jury should be instructed upon apparent danger, and the question of relative strength of the parties omitted as well as that clause of the charge which instructed the jury as to the effect of the use of a deadly weapon. Sometimes it may be a close question as to whether or not a charge should be given with reference to the use of a deadly weapon, but under the facts of this case the charge was not justified, and it tended to turn the consideration of the jury upon an issue not raised. Had deceased drawn and attempted to shoot a pistol the question of real danger would have been raised and the charge on actual danger called for and justified. But such issue was not in the case.

¶4The court gave a rather restrictive and limited charge on threats, which, in the judgment of the writer, should be amplified upon another trial. This charge, it will be noticed, confined appellant's rights to the belief of the jury as a predicate for their finding. This was error. It is the belief of the accused which furnishes the criterion. This applies as well to the question of the acts of the deceased. It is the belief of the accused that his life was in danger or his body of serious injury, viewed from his standpoint, which is the basis of our law under such circumstances. The acts and demonstrations, in view of threats by deceased, are viewed from the defendant's standpoint at the time he acted, and if the defendant believed those things he was entitled to act the same as if they were true. What the jury may believe in the light of the testimony showing that deceased had no pistol is not the criterion, nor is their belief in the light of subsequent developments the criterion. It is the belief of the defendant who is being tried for his life and liberty under all the circumstances as they presented themselves to his mind at the time he acted that should govern the jury in determining guilt. The jury may *675 not but the defendant may have believed those things, and it is his belief by which the jury should be governed in rendering their verdict.

¶5There is another question to which I call attention. The court charged self-defense from the standpoint of threats. There should be upon another trial a charge given upon self-defense viewed in the light of apparent danger independent of the question of threats. The writer does not care to enter into a discussion of this question. In reference to the charge on threats being submitted from the defendant's standpoint, the authorities will be found collated in Mr. Branch's Crim. Law, secs. 447 and 482. That self-defense charge should have been independent of and disconnected from threats see Branch's Crim. Law, sec. 482, for collated authorities. As to the question of charging upon apparent and not actual danger, where apparent danger only is in the case, see Branch's Crim. Law, secs. 443 and 444, for cited cases. For self-defense from defendant's standpoint and especially from apparent danger and threats, see Bell v. State, 20 Texas Crim. App., 445, and Spearman v. State, 23 Texas Crim. App., 224.

¶6Briefly I have written these as some of the reasons why I concurred in the reversal of the judgment and so write in overruling the motion for rehearing.

¶7Overruled.

¶8 *1