Henderson v. State

Decided October 20, 1920

Court of Criminal Appeals of Texas · decided 1920-10-20

1.—Murder—Manslaughter—Insult to Female Relative—Acts of Defendant. There could be no reduction of a culpable homicide to manslaughter caused by insulting words or conduct toward a female relative as applied to the defendant alone in the instant case, for the reason that he has shown beyond question to have been present and heard what was claimed to be the insult offered by the deceased to his daughter-in-law, and he then gave no evidence of resentment or passion, and made no effort to attack or take the life of deceased. Following Evers v. State, 31 Texas Grim. Rep., 324. 2. —Same—Adequate Cause—Manslaughter—Buie Stated. When one of the causes named in the statute is relied on, then such cause can only be presented under named statutory limitations, and when insulting words or conduct to a female relative is the adequate cause relied on, the killing must have taken place immediately when the insult is given, or at the first meeting after the accused is informed thereof, and where the court’s main charge correctly stated the law, there was no error in refusing requested charges on this subject. 3. —Same—Self-defense—Charge of Court—Force Necessary. Where, upon trial of murder, the defendant objected to the Court’s charge on self-defense because it restricted the force which is permissible to such as may be reasonable or necessary, but it appeared from the record that the court’s charge on self-defense was not obnoxious to this, objection, tliere was no reversible error, neither was said charge on self-defense confusing or erroneous. 4. —Same—Principals—Charge of Court—No Express Agreement Necessary. Where, upon trial of murder the defendant objected to the court’s charge on principals, but the record showed on appeal that when the court’s whole charge is considered there was no reversible error, as the State’s evidence showed that there was ample testimony to support an acting together of the defendant and his co-principal throughout the fatal difficulty, and their agreement to so act together may be inferred without proof of an express agreement. 5. —Same—Charge of Court—Words and Phrases—Principals. If any error was committed by the use of the conjunction “and” in a certain paragraph of the court’s main charge, which is doubted, the same was cured by the defendant’s requested charge on the law of principals. 6. —Same—Requested Charge—Practice on Appeal. Where, defendant’s requested charge No. 6, the refusal of which is assigned as error, was substantially covered by the other special charges given by the court, there was no reversible error. 7. —Same—Right of Going Armed—Seeking Explanation—Perfect Self-defense. Where, upon trial of murder the evidence showed that in carrying a pistol on the day of the homicide defendant’s codefendant was following his usual custom when he was away from home, there was no error in refusing a requested charge that the co-principal of the defendant fearing trouble armed himself, etc., for the purpose of seeking an explanation, etc., besides the court’s charge gave the defendant the right of perfect self-defense, and there was no reversible error. Following Smith v. State, 81 Texas Crim. Rep., 368, and other cases; and the court’s charge that said co-defendant had the right to approach the deceased for an explanation, etc., does not alter the above rule. 8. —Same—Argument of Counsel—Requested Charge. Where, upon trial of murder defendant’s counsel objected to the remarks of the prosecuting attorney in his argument to the jury, but it appeared from the record that the court submitted a requested charge instructing the jury not to consider such remarks of State’s counsel there was no reversible error. 9. —Same—Evidence—Declarations of Co-defendant—Res Gestae. Upon trial of murder there was no error in admitting in evidence the declarations of defendant’s co-defendant immediately after the killing that he had killed the deceased, as this was clearly res gestae, nor was it error to admit the declarations of the same party to another witness, that he wanted him to remember that the deceased had a pistol, especially as the latter was favorable to the defendant. 10. —Same—Charge of Court—Acting Together—Principals. The complaint that the form of the court’s charge submitted the issue of the acting together of defendant and his co-defendant in certain language is different than that contended for is without merit. 11. —Same—Hewly Discovered Evidence—Change of Venue—Practice on Appeal. Where no error appeared from the record in the ruling of the court in overruling defendant’s motion for a new trial upon the ground of newly discovered evidence, and a motion for change of venue, there was no reversible error. 12. —Same—Sufficiency of the Evidence. Where, upon trial of murder, the evidence was sufficient to sustain the conviction, there was no error on that ground. 13. —Same—Manslaughter—Charge of Court—Mental Condition of Defendant. Where upon trial of defendant indicted jointly with his son for murder, it appeared from the evidence that prior to the homicide there was some dispute between defendant and deceased over certain property in possession of deceased, and it was afterwards identified by the daughter-in-law of the defendant as the latter’s property, and soon thereafter defendant saw the deceased carrying to market this property and accused him of the fact, and a conflict arose therefrom in which the defendant slew the deceased, the court should have submitted a charge on manslaughter predicated on defendant’s own mental condition at the time, and regardless of that of his co-defendant. 14.—Same—Principals—Manslaughter—Degrees of Homicide—Different Motives. Where, upon trial of murder, in which the evidence showed that the son of defendant did the actual shooting, and the defendant’s testimony showed that, while defendant was present, he did not actually participate therein, and there was no proof of an express agreement between the defendant and his co-defendant to take the life of the deceased, still such, agreement might have been inferred from' what occurred at the place of the killing, and there was no error in the court’s charge submitting the law of principals; but where the evidence also raised the issue of manslaughter, the court should have submitted a charge thereon, although the defendant and his son may have acted together and may have had a common purpose, still they could have been actuated by different motives and been guilty of different degrees of homicide. 15.—Same—Theory of Defense—Charge of Court—Manslaughter. This court has often held it necessary to submit a charge on manslaughter based on evidence wholly contradictory to the theory and testimony of the defense, and although in the instant case, the defendant denied the testimony of the State’s witnesses and attributed the killing to his son alone, yet where he excepted to the charge of the court because it did not present the issue of manslaughter based on his own passion, the court’s refusal to submit such charge on manslaughter is reversible error.

Cited by 1 later decisions — most recently June 1927

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1920-10-20

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¶1 *32 ON REHEARING.

¶2 March 16, 1921.

LATTIMORE, Judge

¶3 In our original opinion we stated, in substance, that there was no evidence calling for the submission by the trial court of a charge on manslaughter, predicated on passion of the appellant himself. We had in mind, as raising manslaughter, only the matter of insulting words and conduct toward either Mrs. Monnie Henderson or appellant, and concluded that appellant could not rely on insulting words or conduct toward himself, same being unaccompanied by any violence. Art. 1131, Vernon’s P. C. Nor could he claim the right to act on passion arising from any language or conduct toward his female relatives, for the reason stated in our opinion, that he was present when the said conduct occurred and the language was used and did not resent it. We also had it in mind that appellant’s own evidence, if true, established his innocence of any wrongdoing; and that of the State, if true, made only a case of murder. A more careful consideration of the record makes us doubtful of the correctness of the last conclusion stated. It will be borne in mind that when the dispute arose over the turkeys, and appellant alone looked at those at the home of deceased, he said-he could not identify any of them as his, but that his daughter-in-law could, and that at the subsequent visit said daughter-in-law did positively identify a number of said turkeys as being the property of appellant. Also that appellant’s witnesses testified that -deceased, on that occasion, told the party that they could look at the turkeys but could not take any of them away. It appears in the testimony of State’s witness Sargent that the first words spoken of appellant to deceased, on the occasion of the homicide, were these “You poor yellow s—n of a b—h” and “You G—d damn s—n of a b—h, you have got my turkeys in this wagon, and G—d damn you, I am going to kill you,” and that he then struck deceased with a stick and called on his son to “kill that s—n of a b—h.” At that time it is undisputed that deceased had in his wagon a number of turkeys taking them to market. State witness Huey also swore after the killing Charles Henderson drove up to his house and told him that they had killed deceased, and when he asked what caused it Charles replied: “A G—d damn turkey mess.” It is also in evidence by the State that subsequent to the dispute over the turkeys, and before the homicide, the parties met or were near each other in Longview and had no trouble on that occasion.

¶4 In the absence of any express proof of an agreement to act together . in taking the life of deceased, the State insists on its right to deduce and infer such agreement from proof of what occurred at the place of the killing, and we agree that it has the right to have the law of principals submitted, and that the jury may settle this issue thus submitted in favor of the State. While this is true, we have concluded *33 that the testimony also raises the issue of manslaughter, predicated on appellant’s own mental condition at the time. It occurs to us that if one has a dispute over property which he claims, and same has been identified as his property by members of his family or others in whom he has confidence, who are better acquainted with same than he is; and soon thereafter he sees the other party to the dispute carrying to market property which he thinks to be that in dispute, and he accuses the party of having his property, and in the conflict slays him, this would present an issue of fact as to his mental condition at the time which ought to be submitted to the jury under appropriate instructions, for the appellant has the same right to have all the law applicable submitted to the jury, as has the State. In other words, while appellant and his son may have acted together, and may have had a common purpose, still they might have been actuated by different motives, and might even be guilty of different degrees of homicide. It can easily be seen that D., planning and purposing the death of A., might relate to B. a story of insulting words and conduct of A. toward a female relative of B. and might accompany the latter to A.’s house, and be present aiding and encouraging B., within our law’s definition of principals, when B. took the life of A. under circumstances which would make B.’s offense only manslaughter. But on the trial of D. who did no act of personal violence to A., proof of -the hypotheses above stated might justify his conviction for murder. Equally true might be the converse, that D, desiring to kill A. and wishing assistance, might relate to B. a false story of insults offered by A. to a female relative of both D. and B., and thus induce B. to accompany him to A.’s house, and the latter might be present when A. was killed by D., proof of which hypotheses might result in D.’s conviction of murder and B. only of manslaughter. These illustrations serve to enlighten our conclusion that appellant may have been so aroused over a belief that his property in dispute was about to be sold by deceased and thus put beyond reach of recovery, as to have caused in his mind, in connection with other facts and circumstances in evidence, a condition which would render it incapable of cool reflection, and this may have been the cause of his actions in the premises, and may have caused him to call upon Charles to shoot the deceased, and their acting together to encompass the killing may have been thus brought about. We are asserting no opinion as to the facts further than to say that they are sufficient to demand the submission of this issue to the jury. We recognize the fact that appellant denies the story of the State witnesses and attributes the killing to Charles Henderson alone, actuated, as his testimony suggests, by self-defense, and wholly independent of any agreement or pre-knowledge on the part of appellant, but this court has often held necessary charges on manslaughter based on evidence wholly contradictory to the theory and testimony of the defense. Appellant excepted to the charge as given because same did not present the issue of manslaughter based on his own passion, and *34 having concluded that this should have been given, it follows that this motion should be granted, the affirmance set aside, and the judgment reversed and the cause remanded, and it is so ordered.

¶5 Reversed and remanded.