Offense, murder; penalty; seven years in the penitentiary.
A former appeal of this case is reported in 90 Tex.Crim. Rep., p. 1, where will be found a statement of the facts which, together with those herein given, are sufficient to illustrate the legal points discussed.
Bad feeling existed between appellant and deceased. On the morning of the homicide they had met and both had drawn guns. Appellant thereafter went in a store. In a few minutes deceased approached the entrance to this store with his gun in his hand, partly upraised, and stepped up to the door as if to enter, when he was shot by appellant.
The Court charged the jury in part as follows:
"Now bearing in mind the foregoing instructions if you believe from the evidence that at the time of the homicide that the deceased John Lance was making or in the act of making an attack upon the defendant, Stonewall Carlile was a gun, which from the manner and character of its use, caused Stonewall Carlile to have a reasonable expectation of fear of death or of serious bodily injury at the hands of John Lance, viewing it from Stonewall Carlile's standpoint alone, and that acting under such reasonable expectation of fear of death or of serious bodily injury, if he so acted, the defendant shot and killed the said John Lane — then you should acquit the defendant."
If the charge of the Court had stopped here, this case would have to be reversed as said paragraph is clearly erroneous, because it authorized the jury to determine the issue of self-defense upon whether the jury itself believed deceased was making or about to make an attack, instead of whether it reasonably so appeared to appellant. It is the belief of defendant as to the existence of facts, and not the truth of facts, that should be submitted to the jury. Arthur v. State, 46 Tex.Crim. Rep.. Branch's P. C., p. 1074.
A charge in substantially the same language was condemned on a former appeal of this case, reported in 90 Tex.Crim. Rep., p. 1. See also Lyons v. State, 159 S.W. 1071; Williams v. State, 61 Tex.Crim. Rep.; Adams v. State, 47 Tex. Crim. 347; Ballard v. State, 160 S.W. 716; Branch's P. C., Sec. 1926. The Court, however, in immediate connection with the above gave a correct and exhaustive charge on self-defense predicated upon apparent danger. The charge must be considered as a whole. When thus considered, it authorized an acquittal: *Page 557
(1) If the jury believed deceased had made or was about to make an attack, or
(2) If it reasonably so appeared to defendant, even though no danger in fact existed.
In either case appellant was entitled to an acquittal and the pointed reference of the Court to an attack by deceased, while not probably justified by the evidence, was we think not prejudicial to appellant. The Court, having given appellant all he was entitled to in applying the law of apparent danger to the facts, did not commit prejudicial error in authorizing an acquittal predicated upon an actual or threatened attack, the reference to which seems favorable rather than prejudicial to appellant. The charge under discussion was, of course, too restrictive, standing alone, but in connection with other paragraphs, it would be hypercritical, we think, to hold that its presence was prejudicial error. We are not authorized to reverse in matters of this kind except where the error was calculated to injure the rights of appellant. Art. 666, C. C. P. Pinson v. State, 94 Tex.Crim. Rep..
Appellant contends that he was not given the benefit of the law of reasonable doubt in the Court's charge on self-defense. We observe that in immediate connection with such charge on self-defense, at the close, the Court instructs the jury: "If you have a reasonable doubt as to whether the defendant was acting in self-defense at the time he killed John Lane, you will acquit him." While we do not commend this method of presentation, it was not in our opinion erroneous.
The rejection of the testimony of several witnesses was made the subject of many bills of exception, all of the same character and the nature of all will be sufficiently revealed by the discussion of the following:
After the appellant had introduced N.M. Porter as a witness, who testified in substance that he was in Atlanta, Texas, on the afternoon of the homicide and saw the deceased come from another house, advancing with a gun to the store house, where the appellant was then located, that upon deceased's reaching the first door of the building he turned and advanced to or into the door and while looking in the house of appellant's location, with gun in hand, the appellant fired the fatal shot, and after said witness had testified to the acts, conduct and movements of the deceased at the time and just before the shot was fired, testified to warnings and exclamations by *Page 558 bystanders given in the hearing of appellant, which said acts, conduct and movements of the deceased and bystanders' actions in trying to prevent deceased's advancement were in the hearing and observation of appellant, the appellant then offered to prove by said witness the following: "That from the acts, conduct and movements of deceased at the time he was shot by the defendant, he was impressed by the belief and such was produced in his mind that the deceased was preparing and intending to shoot the defendant at the time the deceased was shot by the defendant." The Court, we think, correctly excluded this evidence. It comes within the rule announced in the case of Dunne v. State, 263 S.W. 608, and subsequently followed in Hanners v. State, 284 S.W. 554.
The opinions and conclusions of bystanders based practically upon all the defensive facts in evidence ought not to be thus placed before the jury. The appellant specially relies upon the case of Latham v. State, 172 S.W. 797, which was an opinion delivered by this Court speaking through Judge Harper. We have heretofore expressed our doubt as to the soundness of this case and a re-examination of same has confirmed, rather than changed, our original view. The proffered evidence amounted in effect to an expression of opinion by witnesses upon one of the very issues the jury were impanelled to try. There is a distinction between this and other apparently similar cases as pointed out in Dunne's case, supra.
Objection was made to proof that when deceased got his gun at a store prior to the killing that said gun was not loaded and deceased did not load same before he left the store, because not shown to be known to deceased. The evidence for the State shows that the deceased's gun was in fact loaded at the time of the homicide, as it was discharged after he was shot. We do not think the jury could have been misled by this evidence in view of this further proof. If there was proof by the State that at the very time of the homicide the deceased's gun was loaded, proof that prior thereto it was unloaded was not prejudicially erroneous.
Believing that no such errors were committed in the trial of the case as require a reversal, the judgment of the trial court is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 559
ON MOTION FOR REHEARING.