Johnson v. State

Appellant has filed a motion for rehearing, and an able and exhaustive brief in support thereof. There are a number of questions presented, but the one seemingly most relied on by appellant is the one in which it is insisted that this court erred in holding that manslaughter was not in the case, taking the testimony of defendant, and all the testimony into consideration. His first contention is that, as in the Wadlington case, 19 Texas Crim. App., 266, it was held. "That insulting words or gestures or assault and battery so slight as not to inflict pain or injury, or an injury to property, unaccompanied by violence, are not adequate cause, but though no one of these causes alone and independent of the others can be deemed adequate cause to reduce a homicide to manslaughter, yet if they all combine and exist conjointly with each other they may thus united become adequate cause," the facts in this case present such a combination of circumstances as would constitute adequate cause, and, secondly, that the facts show that deceased was guilty of falsely imprisoning appellant on the occasion; but that if the facts do not show that conclusively, then the evidence does suggest that he may have been guilty of falsely imprisoning appellant, and refers us to the cases of Herring v. State, 3 Texas Crim. App., 108; Woods v. State, 3 Texas Crim. App., 204; Maner v. State, 8 Texas Crim. App., 361, and Staples v. State, 14 Texas Crim. App., 136, as sustaining the proposition that the issue of false imprisonment is in this case. These are the two propositions and authorities upon which appellant relies to show that manslaughter was in the case. Appellant's testimony is quoted almost in full in the original opinion, and which he concedes is a fair statement, yet he says we ought to have gone further and stated that appellant was a small man and deceased a large man, and that he was overbearing in his demeanor and conduct.

Does Mr. Johnson's testimony raise the issue that he was falsely imprisoned by deceased? He says deceased had called him a damned liar about a contract; that when he insisted he had such contract deceased said, "If you deny my word again I will mash your nose all over your face." That he started to get up when deceased looked at him "awful vile — like he had daggers in his eyes," and he thought deceased was going to do him some severe harm, and deceased added, "If you move I will stamp you through the floor," and then added, "Go on now and get out and make us money and make money yourself." After some more talk about the contract he went out and made a list of towns as suggested. Under that state of facts if deceased were alive, and the State was prosecuting him for false imprisonment, would this court let a conviction for such offense stand? If so, the issue was raised; if it would not because the testimony was insufficient to sustain such conviction, then the issue was not raised, for there is not the slightest other testimony in the record that would tend to show false imprisonment. What unlawful detention was there of appellant? The deceased did say once, as he went to get up, "If you move I will stamp you through the floor," immediately adding, "Go on now and get out and make us some money and make money yourself," and in a few moments he did go on. It is true there were heated words over a contract, and deceased did call him a damned liar, but there was no detention of appellant against his will, and none of the cases cited by appellant sustain his contention. In the Herring case, supra, two men had gone to the witness' house between the hours of 10 and 11 o'clock at night, called him out of his house, cursed him, and made him admit lying; had pistols with them, and made the witness admit he was a lying s__n of a b__h. Their mission was an unlawful one, and he was detained through fear, the other men being armed.

In the Woods case, supra, Kaufman and Woods both claimed a piece of land. Four men, the appellant Woods, and his father and two brothers went to the farm where Kaufman was plowing and forbade him plowing, and said if he did plow he would have to plow over him, holding a cocked gun in his hands. Bill Woods had a cocked pistol in his hands, and by these means prevented him from plowing. It is thus seen by the use of arms and threats he was unlawfully prevented from plowing land in his possession.

In the Maner case, the appellant and two others went into the woods to find Ferris Pharr. When they found him they produced a written instrument (a lie bill) and in an angry and menacing manner required him to sign it. He asked to be allowed to go and show it to his brother before signing, but in a peremptory and threatening manner he was refused permission. Pharr says he thought he saw a pistol, and being out-numbered and apprehensive, he signed it. Witness' brother, afterwards learning of this, went to the appellant and his companions and asked to see the paper his brother had signed, and said if he had been present his brother would not have signed it, when the appellant replied that he intended it should be signed, and if necessary he would have collared Pharr and forced him to sign it, and that somebody would have been killed if he had not signed it.

In Staples v. State, supra, the father of the person assaulted, with another, went with a deputy sheriff and arrested the man and carried him to the county seat, and delivered him to the sheriff where he was compelled to give bond to secure his release. This was held to be an unauthorized arrest, and the facts further showed that the appellant had not been summoned to go by any officer, but had asked the officer to go with him without swearing out a complaint. These are all the authorities cited by appellant, and none of them are applicable to the facts in this case as hereinbefore shown. Our statute provides that the detention must be wilful. Wilful is defined to mean that the act done must be with evil intent or legal malice. Every detention is not false imprisonment, even if it should be held that deceased detained appellant against his will, which we do not think the facts show. Certainly the facts do not show that he detained him with any evil intent, and if appellant had gone away when he was told to do so, not remaining longer to discuss his contract of his own volition, there would have been no false imprisonment and no killing, and if deceased was alive and being prosecuted for false imprisonment, we would hold the facts did not show an unlawful and wilful detention, and, therefore, that issue was not in the case. In the first three cases cited by appellant there was unlawful detention for an illegal purpose, as shown above; in the last case there was an unlawful arrest, and a carriage away from home, and manslaughter could not be predicated upon unlawful imprisonment in this case, for the evidence does not present that issue.

The record does not disclose the deceased prior to the day of the homicide had ever said an unkind word to or about appellant, or entertained towards him the least ill-will. A disagreement arose over the terms of a contract appellant claimed to have made with the predecessor of deceased as officer in the Waco Machinery Co. Appellant said he had a certain kind of contract; deceased claimed he had no such contract; appellant insisted he had, when deceased called him a damn liar, and when appellant attempted to get out of a chair deceased said he would stamp him through the floor, and if he denied his word again he would mash his nose. These are all the threats of any character appellant testified to. Article 1131 provides "That insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury are not adequate causes to reduce an offense to manslaughter." In this case there was no assault and battery of any character; not a blow was struck by deceased; he did not even touch appellant. All there is claimed took place on this occasion, deceased used insulting words; he threatened violence if appellant again disputed his word, and then appellant says that later deceased did make a threatening gesture. It is certain he got no further, then the lead began to belch from appellant's pistol. The State's witnesses say there was no threatening gesture; appellant, and appellant alone says there was, and he says that deceased reached for instruments with which he thought deceased was going to kill him. This presented self-defense. This is not a case where a combination of the State's testimony and the defendant's testimony might present adequate cause. The State's case makes a case of deliberate murder; the appellant's testimony would make a complete justification. If there was no gesture, there was no adequate cause; if there was, it was such a gesture as justified the homicide under appellant's testimony. Ford v. State, 50 S.W. Rep., 350; Jirou v. State, 53 Tex.Crim. Rep.; Dougherty v. State, 59 Tex.Crim. Rep..

We thoroughly agree with the rule of law as laid down in the case of Wadlington, supra, cited by appellant, that where there may be a combination of causes, although neither one in and of itself would be statutory adequate cause, which would reduce an offense to manslaughter, yet all combined they may do so, but the Wadlington case does not sustain appellant's contention under the evidence in this case, but sustains the original opinion. Contat, the witness in that case, testified that the defendant called him a damn lie twice, having his hand in his pocket on a pistol; after more talk the defendant charged witness with threatening to kill him, which was denied, when the defendant began to pat him on the back. The court in that case says these facts would not beadequate cause to reduce an offense to manslaughter, but says the testimony excluded, by which the defendant offered to prove that the charge of improper conduct towards the wife and child was untrue, was admissible, and if these additional facts had been admitted, then under such circumstances all of the circumstances would raise the issue. It is thus seen that that case holds that facts herein relied on by appellant, would not be adequate cause to reduce the offense to manslaughter. (See authorities cited in original opinion, and Kelly v. State, 68 Tex.Crim. Rep., 151 S.W. Rep., 304; Treadway v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 666, and authorities there cited.) In McKinney v. State, 8 Texas Crim. App., 626, Presiding Judge White, speaking for the court, held: "The proposition stated in the special instruction is not a correct proposition of law; for a killing upon such sudden passion as is mentioned may be murder in the second degree, even though the passion was anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection. To make such killing manslaughter, there must actually have existed not only such state or emotion of the mind, but the adequate cause which produced them must also exist. Penal Code, art. 602. Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, may be sufficient to cause the emotions of the mind known as anger, rage, sudden resentment, or terror, to the extent even of rendering it incapable of cool reflection, and yet a killing under such circumstances would not be manslaughter. Why? Because such insulting words or gestures, or such assault and battery, are not adequate causes (Penal Code, art. 596), and manslaughter can not be predicated upon any voluntary homicide upon sudden passion not arising from an adequate cause."

We have again discussed this question at length that it may be known that we will take the plain mandate of the statute for our guide, and follow it, for while there may be a combination of circumstances and acts which will be adequate cause to reduce an offense to manslaughter, yet if the conduct and acts are of the character and kind that the statute says shall not be deemed adequate cause, then manslaughter is not raised, and mere abusive language, if accompanied by an assault, which the whole record shows caused no pain or bloodshed, and is not contended that it did, is not and will not be sufficient to raise the issue of manslaughter, because the statute says it shall not be. And nothing said in the case of Wadlington v. State, 19 Texas Crim. App., 272, conflicts with this rule of law, for when we take the facts in that case, and the opinion as a whole, it also announces the same rule of law as herein stated and we adhere to the original opinion that the issue of manslaughter is not in the case. However, the court did submit the issue of manslaughter in his charge, and in a way that we think fairly did so as applicable to the facts of this case. The first paragraph complained of reads: "Insulting epithets or words or gestures alone showing no intention to inflict pain or injury are not deemed adequate causes under the law to reduce an unlawful killing from the grade of murder to that of manslaughter; or in other words, sudden passion, though overpowering the reflective qualities of the mind, caused by insulting epithets, or words or gestures alone showing no intention, real or apparent, to inflict pain or injury will not reduce murder to manslaughter." According to the evidence for the State all that deceased did was to use insulting language to appellant — that and nothing more, and under article 1131 of the Penal Code that was but presenting that phase of the law to the jury for their guidance. This was held proper in the case of Hill v. State, 8 Texas Crim. App., 142, where the evidence presents two theories, but it is also held that the converse ought to be presented, — that is, the issue as made by the testimony for the defendant. There was no assault causing pain or bloodshed, but the matters relied on by appellant were that deceased used abusive language, and told appellant if he again disputed his word he would stamp him through the floor, and mash his nose all over his face; that he subsequently used abusive language. This is the sum and substance of the testimony, until appellant says deceased at last arose from his chair, looked vicious and reached for things on the table with which he thought he was going to kill him. This last the court fully presented in the charge on justifiable homicide. Now did the charge on manslaughter submit the issue as made by his testimony fairly? After giving the statutory definition, the court instructed the jury:

"Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty in determining the adequacy of the provocation, if any, to consider in connection therewith, all the facts and circumstances in evidence in the case, both before and at the time of the killing, and if you find that by reason thereof the defendant's mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law, and so in this case you will consider all the facts and circumstances in evidence, both before and at the time of the killing, in determining the condition of the defendant's mind, at the time of the alleged killing, and the adequacy of the cause, if any, producing such condition.

"The following are deemed adequate causes: Any condition and circumstance which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection, whether accompanied by bodily pain or not is deemed adequate cause. And where there are several causes to arouse passion, although none of them alone would constitute adequate cause, it is for you to determine whether or not all such causes combined might be sufficient to do so."

After so doing he submitted the issue for a finding in a way not subject to complaint. Appellant asked no charge on manslaughter, and complained of the charge for the first time in his motion for a new trial. So if the evidence, by a combination of all the circumstances testified to by appellant, should be held to require the submission of the issue, then the charge as given fairly and fully does so.

Appellant's complaint that the charge is erroneous in instructing the jury, "That the provocation must arise at the time" can not be sustained. The statute so provides, in every case except in case of insult to a female relative, which is fixed at the first meeting thereafter, but in all other cases the provocation must arise at the time. It is true you can look to antecedent matters in judging of and passing on whether the provocation arising at the time, in the light of all the testimony, was such as to produce such a state of mind in a person of ordinary temper.

A charge on cooling time would have been injurious to appellant, and is not such a matter as he will be heard to complain of. By instructing the jury to consider all the facts and circumstances in evidence, it was as favorable as the court could have presented it. Neither at the time of the homicide, nor prior thereto, was there statutory adequate cause testified to by any witness. In a case where statutory adequate cause is in the case, the court should so instruct the jury, and then if the issue of cooling time is in the case, the court should instruct the jury properly in regard thereto. But in this case, no statutory adequate cause arising at any time, the court in permitting and instructing the jury to consider all the facts and circumstances, and in nowise limiting any of the testimony by charging on cooling time, it would be error in favor of appellant, if error it be. Hancock v. State, 47 Tex. Crim. 3.

Appellant also complains of the court failing to charge on threats in connection with the charge on self-defense. The only threats in the case were the two remarks testified to by appellant, — that deceased said to him if he disputed his word again he would mash his nose all over his face, and he would stamp him through the floor. Appellant still insisted that he had a contract by which he was to be at home each night, when deceased told him to go ahead and make out a list of towns he could make, and he, deceased, would confer with Mr. Martin and Bruce Duncan in regard to the matter and see if they could make any money out of such a contract. Appellant went and made the list and deceased conferred with Martin and his son, Bruce, and then called appellant, and they renewed the discussion of the contract and appellant's ability to make the towns he had listed, and whether or not any money could be made out of such an agreement. The State's testimony is that the deceased got up and told appellant to go ahead and see what he could do. Appellant's is that as deceased got up he looked vile, and made a threatening gesture as if to get something off the table with which to kill him. It is thus seen that there was no cessation of the negotiations between them from the time it began that morning until the fatal shots were fired. It is true the whole negotiations may have covered from forty-five minutes to an hour in time, but the mind of neither of them was detracted or taken away from the negotiations, but their attention was on this matter and this alone. Under such a state of facts, under all the authorities, no separate and distinct charge on threats was called for. The threats were no definite threats, but were indirect in that deceased told appellant if he again disputed his word he would stamp him through the floor and mash his nose. Hancock v. State, 47 Tex.Crim. Rep.; Armstrong v. State,50 Tex. Crim. 26.

The other questions involved in the motion for a rehearing are ably discussed in a brief filed by Messrs. E.T. Branch and C.E. Lane, and we take the liberty to copy therefrom the following excerpts:

"In reply to the contention of appellant that the court erred in permitting the State to prove, as shown by his bill of exceptions No. 7, on pages 64 to 80, that the deceased was acquitted of a charge of murder and was not guilty thereof, the State respectfully submits the following:

"Appellant was permitted to prove that deceased had been indicted for murder, and also introduced the indictment in evidence, which testimony was inadmissible: first, because the indictment against deceased was too remote. Proof of specific acts of violence is not admissible to show the character of deceased when the same are too remote. The testimony shows that this happened before appellant was born and while deceased was but a boy. Second, proof of the fact that deceased had beenindicted for murder was not admissible because such proof would not show a specific act of violence or raise any presumption that the homicide was unlawful because an indictment is not evidence of guilt; and in cases of homicide, indictments are sought for the purpose of clearing the name of the accused while the witnesses are accessible because murder is never barred by limitation. In the case of Nelson v. State, 58 S.W. Rep., 107, the appellant complained of the refusal to permit him to prove that deceased had been indicted for murder in at least two cases, and this evidence was there held inadmissible. This seems to be the only case in this country in which this identical question was presented; but we think on principle it can not fairly be said that proof that deceased was indicted for murder is proof of a specific act of unlawful violence.

"However this may be, and whether or not the evidence is legal or illegal, the State had the right to rebut the inference sought to be drawn therefrom by the appellant and to show the real facts in connection therewith so as to show that said indictment was in fact no proof of bad character. The leading case in the United States so far as we have been able to find, and which we think correctly states the proposition of law, is Hysaw v. State, 69 Tex.Crim. Rep., 155 S.W. Rep., 941, in which Judge Prendergast, speaking for the court, says:

"`The State, in cross-examination of such witnesses, should be permitted to go into the particulars of the specific acts for the purpose of showing that the deceased was justifiable, or of rebutting defendant's theory that such acts showed him to have been a violent and dangerous person,' etc.

"In the case of Bullock v. State, 73 Tex.Crim. Rep., 165 S.W. Rep., 196, the court says: `Whenever the circumstances are such as to authorize an appellant to introduce such specific acts, the State, on cross-examination, should then be permitted to go into the particulars of such specific acts for the purpose of showing that the deceased was justifiable, or rebut the defendant's theory that such acts showed him to have been a violent and dangerous person. Such specific acts would tend to show, and in some instances might show deceased to be a violent and dangerous man equally or more than his mere general character or reputation on the point. Certainly when an appellant ispermitted to attack a deceased, the State should then bepermitted, if it could, to introduce proof to rebut suchevidence. The lips of the murdered man are of course closed. He can not testify to dispute or refute such evidence by an accused. The State therefore unquestionably has the right to meet this proof by showing that the general reputation or character of a deceased was that of a quiet, peaceable, and law-abiding man when the reverse is attempted to be shown by an appellant. Among other objects of our Code, as expressly enacted therein, it is said its object is "to bring to the investigation of each offense on the trial all the evidence tending to produce conviction or acquittal."'

"In this case the court also quotes from the case of Hysaw v. State, supra. We think that from what is said by the court in these two cases and from the general principles of law, the State should be and was permitted to rebut the inference sought to be drawn by appellant by his proof that deceased had been indicted for murder and to remove, if it could, from the scales of justice such testimony of appellant. It is an elementary principle of evidence and sustained by many authorities in this State, that whatever facts are introduced that tend to affect the issue, the opposite side may break the force and effect of such testimony by showing its falsity or by contradicting or rebutting the inference sought to be drawn therefrom in any legitimate way. The authorities cited by appellant are not in point because the State was not attempting to show matters occurring at the time of the homicide which impinged on the defense of appellant but was simply explaining the effect and breaking the force of the inference sought to be drawn from such testimony. And the State's testimony is based on rules clearly distinguishable from the authorities cited by appellant in his brief because neither the State nor the appellant in the instant case was seeking to attack or sustain the credibility of a witness. Clearly the fact that deceased had been indicted, even if it were admissible, was subject to explanation so that no unfair inference might be drawn therefrom by the jury; and this is clearly illustrated by the case of Kemper v. State, 63 Tex.Crim. Rep..

"The right of the appellant to prove specific acts of violence of the deceased is an exception to the general rule because ordinarily such fact is provable only by proof of general reputation, and in this case appellant did not bring himself within the exception. But, even if he had, the State is not bound by what the defendant knew or said he knew of the matter, but may show the real facts in relation thereto so that the jury may draw the proper and correct inference therefrom and might meet proof of specific acts of violence alleged to have been committed by deceased by an explanation of the true facts. Otherwise it would lie in the mouth of the party accused of murder to improperly vilify the character of the deceased. The State is no more confined to proof of general reputation than the defendant is when the State is tendered the issue of specific acts; and when in the light of this whole case it is seen that the lowest punishment for murder was inflicted and that the court charged the jury clearly and fairly to the effect that appellant's apprehension of danger must be viewed from his own standpoint, no injury could or did result to appellant from the admission of this testimony.

"In cases where the defendant claims a homicide was committed on account of insults to his female relative, the State has always been permitted to show the truth as to whether or not such insults were in fact made or communicated. Many of these propositions and authorities are found in section 510 of Branch's Criminal Law, and Cameron v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 867, is in line therewith. And while these cases and propositions are not exactly analogous, still they tend to support what is above contended for. And in any event, the testimony admitted and complained of could not fairly be said to operate to the injury of appellant because the same did not tend to help the State's case in proving the guilt of appellant, it not being of any matter that occurred at the time of the homicide but being admitted merely for the purpose of removing an inference sought to be drawn by appellant from proof of a remote indictment against deceased. In the case of Williams v. State,67 Tex. Crim. 287, 148 S.W. Rep., 763, this court held that if defendant proves threats by deceased and that the deceased was a man likely to execute a threat seriously made, the State might prove by a witness who has been intimately associated with the deceased for years that he had never known deceased to carry a pistol. The State did not become impotent or powerless to prove the truth simply because appellant had proof that deceased had, a long time before, been indicted for murder. Nor do we believe that the bill of exceptions shows as a fact that the appellant did not know of the outcome of the trouble and the cause of the trouble. On page 66 of the record appellant says:

"`I do not remember whether I was told in the same communication the outcome of the trouble and the cause of the trouble. I do not remember anything about that. I did not inquire into the cause of the trouble that A.P. Duncan was in. . . . After this matter was told me about the trouble in Grimes County, I did not ask the cause of it and the result of it.' And whether or not he had, we think the rule is correctly stated by Judge Prendergast in the Hysaw and Bullock cases, supra, to the effect that the State may meet proof of specific acts of violence by proof of the real facts so as to show that in fact the deceased was not a violent and dangerous man as contended for by the slayer. And we do not think the State is bound to make this proof by any particular witness and especially in this case where it was impossible for the State to cross-examine the indictment introduced by appellant. And certainly in this case, where no specific act of violence was shown by appellant but only proof that an indictment had been found, the State should have been, as it was, permitted to show the truth in relation thereto. This simply removed the matter from the case and if the jury were intelligent, as it must be presumed they were, the State's explanation thereof did not, in the light of all the testimony in this case, tend either to bring about appellant's conviction or to enhance the penalty assessed against him. Some of the other matters introduced or sought to be introduced in this connection did not show specific acts of unlawful violence or tend to illustrate the character of the deceased or the standpoint of the defendant because appellant did not show that the trouble he heard deceased was in was trouble in which deceased was at fault. Before any proof of specific acts of deceased should be admitted a defendant ought to show that such acts are unlawful and are specific acts of unlawful violence, and that they, when fairly construed, tend to show that deceased was in the wrong and that the acts were such as would indicate that deceased would likely do the things that defendant claims he did, and that such acts would reasonably show a basis for a claim of self-defense.

"When the defendant proves bad reputation for violence of the deceased, the State is permitted to break the force of that testimony by proof of his good reputation in that respect, and we think it equally true that where specific acts of violence are sought to be put in evidence for the purpose of illustrating some issue in the case, or if put in at all, the State is equally permitted to show the truth in relation thereto. We also think that the State is not concluded by this statement of the defendant that he did not know the entire truth or the real merits of the controversy, and that the State may prove the real facts in a question of this kind so as to leave it to the jury to decide as to what, in fact, the defendant did hear."

Of course, as said in the original opinion, none of the testimony as to the details other than that Duncan was not guilty of the offense and had been acquitted, was admissible, but the objection made was that none of the testimony was admissible, and what we intend to hold and do hold is, that that much of the testimony was admissible, and when a general objection is made to testimony, a part of which is admissible, and a part inadmissible, the court's attention by the objection made must be directed specifically to the inadmissible part of the testimony and exception reserved to admitting the inadmissible part of it. As said in Ortiz v. State, 68 Tex.Crim. Rep., 151 S.W. Rep., 1056: "A bill of exceptions is too general for consideration if it includes a number of statements, some of which are clearly admissible, and there is nothing in the objection directly pointing out the supposed objectionable portions of the evidence," citing Branch's Crim. Law, sec. 47; Payton v. State, 35 Tex.Crim. Rep.; Tubb v. State,55 Tex. Crim. 606; Cabral v. State, 57 Tex.Crim. Rep..

The motion for rehearing is overruled.

Overruled.