LENTZ v. THE STATE

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Docket Number

No. 3237.

Attorney(S)

A.C. Van Velzer, for appellant. — It is impossible to distinguish the attack by Allen from the attack by deceased, as it was all one event, or res gestæ. That Allen sought defendant's life is seen in the manner of the attack, the weapons used and in his words to Hillendahl, "Will, kill him." It is impossible to draw any other conclusion from the acts and words of Allen other than he sought the life of defendant. To our minds his part therein is inconsistent with any other purpose than a menace to the life of defendant. Defendant testified that deceased fired the first shot — that shot was fired immediately upon the words being spoken by Allen, "Will, kill him." There were no other persons present in the room other than the deceased, defendant and Allen, and the first shot was fired by deceased at defendant. Carter v. State, 35 S.W. Rep., 378; Bonnard v. State, 25 Texas Crim. App., 173; Cartwright v. State, 16 Texas Crim. App., 473; Meuly v. State, 26 Texas Crim. App., 274; Bean v. State, 25 Texas Crim. App., 346; Jones v. State, 20 Texas Crim. App., 665; McLaughlin v. State, 10 Texas Crim. App., 340. In a murder case, if the evidence, however inconclusive, tends to prove facts from which the jury might deduce a finding of manslaughter, it is incumbent on the court to charge on that issue. If the court is in doubt whether to so charge, the charge should be given. Halbert v. State, 3 Texas Crim. App., 656; Robles v. State, 5 Texas Crim. App., 346; Jones v. State, 33 Tex. Crim. 492; Johnson v. State, 26 Texas Crim. App., 631; Hill v. State, 5 Texas Crim. App., 2; Williams v. State, 7 Texas Crim. App., 396; Spivey v. State, 30 Texas Crim. App., 343; Phillips v. State, 26 Texas Crim. App., 228. The statute defining "adequate cause" is merely explanatory and is not restrictive. Any facts sufficient to create sudden terror, or passion so as to cause a person of ordinary temper to be incapable of cool reflection is adequate cause. Childers v. State, 33 Tex.Crim. Rep.; Williams v. State, 15 Texas Crim. App., 617; Wadlington v. State, 19 Texas Crim. App., 266; West v. State, 2 Texas Crim. App., 460. When any facts, whether singly or collectively, tend to show conditions or circumstances which a jury might consider adequate cause that issue should be submitted. Gilcrease v. State, 33 Tex. Crim. 619; Baltrip v. State, 30 Texas Crim. App., 545; Milrainey v. State, 33 Tex.Crim. Rep.; Mackey v. State, 13 Texas Crim. App., 360. The fact that this is a clear case of self-defense, according to defendant's theory, does not lessen the "sudden terror" or "adequate cause." That a man under such circumstances would ordinarily be incapable of cool reflection does not affect his right of self-defense. Hawthorne v. State, 28 Texas Crim. App., 212; Cochran v. State, 28 Texas Crim. App., 422; Jones v. State, 17 Texas Crim. App., 602; Arto v. State, 19 Texas Crim. App., 126; Bonner v. State, 29 Texas Crim. App., 223; Orman v. State, 24 Texas Crim. App., 495; Jackson v. State, 32 Tex. Crim. 192; Thuston v. State, 21 Texas Crim. App., 245. In our motion for a new trial and in our assignments of error we have pointed out that the general charge on self-defense was upon the weight of evidence, and that it was more onerous upon defendant than the law requires. For instance, the court charged the jury that if deceased first fired at defendant and if deceased caused defendant to fear for his life or to fear serious bodily harm then defendant had the right to protect himself. Defendant's right of self-defense is made to depend at all events upon the belief or finding that deceased fired the first shot. Such is not the law. Defendant's right of self-defense depended upon the appearance of danger and not upon whether Hillendahl fired the first shot. The court seems to have attempted to apply the language in his charge to the facts of the case, but in so doing misdirected the jury in this fundamental respect. It was a disputed point as to who fired the first shot, the two State's witnesses testifying that defendant fired first while defendant testified that deceased fired first. With this conflict of evidence, to require defendant to await his self-defense until he is fired at once by deceased is not the law, and the court in requiring the jury to find both that deceased first fired at defendant and also that defendant was in danger before he shot deceased went beyond any requirement of the law that we have become familiar with. The right of self-defense arose from the appearances of danger alone and not from the fact alone that Hillendahl fired first, nor from a finding that Hillendahl fired first when considered with any other fact. But the court told the jury that Lenz had a right to defend himself only in the event that Hillendahl had already fired at him and appeared to be still in danger. Howard Martin, Assistant Attorney-General, for the State.

Judges

BROOKS, JUDGE.

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JOHN LENTZ v. THE STATE.

1. — Murder in Second Degree — Charge of Court — Self-Defense.

Where the testimony of defendant showed that A, had run away from the scene of the homicide at the time defendant fired the shot which killed deceased, there was no error in not submitting a charge upon the right of defendant to defend himself against deceased and A.

2. — Same — Manslaughter — Charge of Court.

Where the appellant's testimony made out a case of perfect self-defense, and that of the State an unprovoked killing, the issue of manslaughter was not in the case, and the court did not err in not charging on the law of that grade of homicide.

3. — Same — Charge of Court — Self-Defense.

Where the court instructed the jury in substance that defendant could defend himself against real or apparent danger viewed from his standpoint, there was no error.

4. — Same — Fact Case.

See facts which are held sufficient to sustain a verdict of murder in the second degree.

BROOKS, JUDGE.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty years.

We will discuss the errors assigned in the order in which they are stated in appellant's brief. The first complaint is, that the court erred in not charging upon the right of defendant to defend himself against deceased and one Allen, claiming that the testimony shows that both parties were making an assault upon appellant at the time of the fatal shot. After a very careful review of the testimony we do not think this contention is correct. Allen had run away from the scene of the homicide at the time the shot was fired, according to the testimony of appellant himself; and certainly could not have been in the attitude of making an assault upon appellant, while fleeing from the scene of the homicide.

Appellant's second insistence is that the court erred in not charging on the law of manslaughter. From the State's testimony the issue of manslaughter is not presented. Appellant's testimony makes out a case of perfect self-defense; while the State's testimony shows an unprovoked killing upon grossly inadequate cause: in fact no cause at all.

Appellant also criticises the charge of the court on self-defense. The charge taken as a whole is correct. It tells the jury in substance that appellant could defend against real or apparent danger, viewed from his standpoint.

The fourth insistence of appellant is that the verdict of the jury is not supported by the evidence. We believe the evidence amply warrants the finding of the jury. No error appearing the judgment is affirmed.

Affirmed.

Henderson, Judge, absent.

[Motion for rehearing overruled without written opinion. — Reporter.]

JOHN LENTZ v. THE STATE.

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