TURNER v. THE STATE

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Docket Number

No. 2154.

Judges

HENDERSON, JUDGE.

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JAMES TURNER v. THE STATE.

J.G. Cook, for appellant. — The indictment being for murder in the first degree, and the appellant having been on his first trial acquitted of that degree, and on his second trial of murder of the second degree, no further trial could be had under such indictment. Code Crim. Proc., art. 762; Murry v. State, 21 Texas Crim. App., 620; Smith v. State, 18 Texas Crim. App., 454; Tyson v. Britton, 6 Tex. 222; Roberts v. Yarboro, 41 Tex. 449; Etter v. Railway, 2 Court App. C.C., sec. 58.

The article cited reads: "If a defendant prosecuted for an offense which includes within it lesser degrees, be convicted of an offense lower than that for which he is indicted, and a new trial is granted him, the verdict upon the first trial shall be considered as an acquittal of the higher offense; but he may, upon a second trial, be convicted of the same offense of which he was before convicted, or any other inferior thereto."

It is contended that the express authority given by this article of the Code to try the defendant under the same indictment a second time, and for a different offense from that for which he was indicted, was exhausted and ceased when the appellant was tried the second time in October, 1898, for murder in the second degree, and convicted for manslaughter. If the statute authorizes a third trial, and that for an offense of a lesser degree than the one for which he was first convicted, the first conviction being for a lesser degree than that for which he was indicted, such authority must be raised by implication, and not by the language used. The language of the statute would render the indictment functus officio when the conviction in this case for manslaughter was set aside, and it would be no longer a basis for a criminal prosecution. The language is plain, free from ambiguity and doubt, and expresses plainly the circumstances under which a second trial may be had under the same indictment for a lesser degree than the one charged, and it is silent as to any right or authority to try a defendant the third time when he has been convicted at a second trial for an offense inferior in degree to the one for which he was first convicted. To raise such authority by implication would be in contravention to the recognized rules of construction, "that when a statute limits the thing to be done in a particular form it implies that it shall not be done otherwise" (2 Court App. C.C., sec. 58); and "when the Legislature has prescribed a general rule with special disabilities or privileges, these can not be enlarged or extended to objects not embraced by mere implication or parity of reason." 41 Tex. 449. Neither can the common law furnish in this case a rule of construction, for the rule there authorizes a conviction for the highest degree of homicide charged in an indictment, where a conviction has been for a lesser degree and a new trial granted. Whart. Am. Crim. Law., 4 ed., sec. 550. Which rule is in conflict with the Code of Criminal Procedure.

The second ground of error assigned in the motion for a new trial relates to the refusal of the court to instruct the jury to acquit the defendant if the testimony showed that he was guilty of murder in the first or second degrees.

A part of the testimony introduced by the State, if true, strongly tended to show the existence of malice in the defendant towards the deceased, and that the homicide was murder, and it was the imperative duty of the court, when requested by the defendant, to instruct the jury to acquit him, if they believed the homicide to be of a higher degree than manslaughter. Penal Code, arts. 701, 710; Parker v. State, 22 Texas Crim. App., 107; Fuller v. State, 30 Texas Crim. App., 562; Scroggin v. State, 32 Tex. Crim. 71; Carter v. State, 40 S.W. Rep., 498; Gregory v. State, 41 S.W. Rep., 579; Leach v. State, 22 Texas Crim. App., 281; King v. State, 4 Texas Crim. App., 54; Wilson v. State, 4 Texas Crim. App., 637.

James P. Kinnard, District Attorney, and Rob't A. John, Assistant Attorney-General, for the State. — It is submitted by the State that the first contention of appellant, to the effect that the indictment had become functus officio because it charged murder upon malice aforethought, and appellant had been acquitted of both degrees of murder, and therefore said indictment would not sustain a prosecution for manslaughter, is absolutely without authority, and has not even the merit of logic to back it. For it has been uniformly held that upon the trial for murder, the indictment simply charging murder in general terms, that not only murder in the first degree might be proven and the conviction follow, but also murder in the second degree, manslaughter, both of the degrees of negligent homicide, and aggravated and simple assault. Therefore a new trial being a trial de novo, permits, upon a trial of manslaughter only, the pleading to be sufficient upon an indictment for murder. The statement of the contention of appellant answers itself.

The second contention, to the effect that the testimony in reference to malice was not admissible, because appellant was only on trial for manslaughter, is answered by the former decision in this case. Turner v. State, 46 S.W. Rep., 830.

As stated by counsel for appellant in his oral argument to the court, and as indicated in the able brief filed by him herein, the only serious controversy is whether or not the court should have given the special charge to the jury, to the effect that if the jury found that defendant was guilty of murder either in the first or second degree, the defendant having been acquitted of murder in those degrees, they could not convict him of manslaughter, and therefore they should acquit.

If the allegation of murder in general terms embraces within it all the elements of manslaughter, then the proof of murder of necessity must embrace within it the proof of manslaughter. To hold otherwise would place the law in this anomalous condition. A man, as in the case at bar, could be charged with murder; tried and convicted of murder in the second degree; a new trial granted; tried again, and convicted of manslaughter; a new trial granted; and as in this case, if the rule be correct as invoked by appellant, if the murder be one of sudden passion, aroused by a cause which is inadequate, or if the issue be whether or not the cause be adequate or inadequate, then in order to convict, the State will be compelled to prove the adequacy of the cause, and the defendant would be authorized to defend by proving that the cause was inadequate; or in other words, the trial would be reduced to the absurdity of the State introducing exculpatory testimony to show guilt, and the defendant introducing incriminating facts to show innocence.

The rule insisted upon by the State is recognized by this court as between the two degrees of murder. In Baker v. State, 4 Texas Criminal Appeals, it was held that if a defendant is on trial for murder in the second degree he is not entitled to an acquittal because the evidence against him would sustain a conviction for murder in the first degree. And this doctrine has been approved in Fuller's case, cited by appellant, citing Commonwealth v. Andrews, 132 Massachusetts, 163.

Therefore, if the man be charged with murder in the second degree, and tried for murder in the second degree, if the proof shows that it was committed upon express malice, he is not entitled to a charge like the one requested by appellant. True, this doctrine has been questioned in the Conde case, 35 Texas Criminal Reports, 98; but the opinion of the majority of the court in that case sustained the proposition laid down in the Fuller case, supra.

Now, then, if the distinctions between murder in the first and second degrees are as well defined and as distinct as the distinction between murder in the second degree and manslaughter, the State insists that either the Fuller case is wrong, and the cases upon which the Fuller case is based, and Judge Henderson's opinion in the Conde case is correct. The common law authorities sustain the State in this position.

The State submits as a proposition that if the appellant at bar had been indicted for manslaughter originally, then the principles to be applied would be exactly the same as where he has been acquitted of the two higher degrees of murder, and is only on trial, as in this case, for manslaughter. And yet it has been uniformly held that where a person is charged with the lower grade of an offense, such as theft of property, the value of which made it only a misdemeanor, the proof showing that the value of the property was great enough to constitute it a felony, that the defendant would not be heard to insist that he was entitled to acquittal for that reason, it being for his benefit.

On this issue Mr. Bishop, in his work on New Criminal Law, Volume 1, page 491, section 812, says: "We have some American authority contrary to the better doctrine that one can not be convicted on a charge of misdemeanor, where the evidence discloses a felony, a consequence more or less, or in some of the States deemed derivable from the statute. Such a condition of the law, wherever existing, is greatly to be deplored, for if the same evidence is not produced on the second trial, the party may altogether escape." As in this case, the second jury believing in express malice or implied malice would be forced to acquit although his guilt be undisputed. As said by Justice Hawkins, quoted by the same learned author, supra: "If the indictment is for a misdemeanor, and the added act which makes the felony appears at the trial, opinions are divided as to whether or not there can be a conviction for the misdemeanor." His decision, however, was, that there can be. And as stated by Mr. Bishop, the great weight and reason is with this contention.

Upon inspection of the American and English Encyclopedia of Law, volume 9, page 555, it is stated, as a general rule, that the only distinction between the degrees of culpable homicide is merely as affecting the gradation of punishment, or to quote it literally: "As these degrees of murder are usually defined, neither of them differ from the common law murder, but courts have repeatedly said that the apparent object of this statutory discrimination is merely a gradation of the punishment according to the degree of malice and malignity." And cites to sustain this text a great many eminent authorities. This authority, on page 579, Id., in reference to manslaughter, uses the following language: "It has been held that it is no defense to an indictment for manslaughter that the evidence shows the homicide to have been committed with malice aforethought, and therefore to have been murder; but that the defendant may be convicted of manslaughter as charged in the indictment." If this is a correct rule as to manslaughter at common law, it becomes more pertinent, because our statutory manslaughter is nearer akin and is more closely allied to murder in the first and second degree than manslaughter under the common law.

It has been held in the Bradshaw case, 50 Southwestern Reporter, 359, that upon an indictment for murder, even though the proof shows murder in the first degree, negligent homicide can be sustained. If that proposition be true, then why is not the converse of the proposition equally logical, — that if the person be charged with negligent homicide, why would not proof of murder in the first degree sustain that predicate? There is certainly no distinction in reason between the two.

1. Murder — Indictment — Former Acquittal of Murder — Trial for Manslaughter.

The rule of practice in this State is that a former acquittal of murder will not bar a subsequent prosecution under the same indictment for manslaughter.

2. Same — Evidence — Malice — Res Gestae.

Upon a trial for manslaughter, where there had been a former acquittal of murder, evidence which is part of the res gestae of the transaction is admissible, even though it tends to prove malice.

3. Manslaughter — Former Acquittal of Murder — Charge.

On a subsequent trial for manslaughter, where there had been a previous acquittal in the same case of murder, and the evidence on the manslaughter trial reasonably shows that defendant is guilty of murder of either the first or second degree, and not guilty of manslaughter, it is the duty of the court, especially where so requested by defendant, to instruct the jury that if they should believe the evidence established the guilt of defendant of either murder of the first or second degree, to acquit him altogether.

4. Manslaughter — Evidence Establishing.

See opinion of the court for facts in evidence summarized which are held to establish manslaughter and not murder, and which support a conviction of manslaughter.

HENDERSON, JUDGE.

Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of two years, and prosecutes this appeal. This is the third appeal in this case. 46 S.W. Rep., 830; 51 S.W. Rep., 366. The statement of facts is not materially different on this trial and on the former trial. For a report of the testimony had on the former trial, see 46 Southwestern Reporter, 830.

Appellant contends "that the prosecution could not be maintained under the indictment, inasmuch as defendant had been tried and acquitted at previous terms of this court of murder under the indictment, and that said indictment had become functus officio, and that a prosecution for manslaughter could not be maintained under said indictment." The rule and practice are otherwise in this State.

Appellant insists that the court erred in refusing to sustain his objections to the admission of certain testimony which he claims indicated malice on the part of appellant in the homicide, and which could not be introduced on a trial for manslaughter. We do not believe this contention is sound. The evidence complained of was for the most part res gestae. All was relevant as pertaining to the transaction, and tended to show the animus or state of mind existing between the parties. Even if it be conceded that some of said testimony suggests malice, yet it would be exceedingly difficult to draw the line in a trial for homicide between the testimony that was relevant to any particular grade of unlawful homicide, so that, as a general proposition, all testimony connected with the homicide, and tending to shed light on it, either as res gestae or as indicating motive, ought to be admitted. We apprehend, however, appellant does not make any serious contention that said testimony was not admissible, but merely raises the objection to the evidence in order to reinforce himself in the assertion of his next proposition.

On the trial the court only submitted manslaughter and self-defense. Appellant prepared and presented to the court a charge to the effect that, if the jury believed the testimony introduced showed appellant was guilty of murder in either the first or second degree, to acquit him, inasmuch as he had been previously tried and acquitted for said offense. In that connection he cites us to Parker v. State, 22 Texas Criminal Appeals, 107; Fuller v. State, 30 Texas Criminal Appeals, 562; Carter v. State (Texas Criminal Appeals), 40 Southwestern Reporter, 498; and a number of other cases. The Parker case, supra, undoubtedly is authority for the proposition that where an accused has been convicted of manslaughter, under an indictment charging him with murder, and a new trial has been granted, on a subsequent trial of the case it would be improper for the court to instruct the jury that, if they believed the evidence showed that defendant was guilty of murder of either the first or second degree, they would be authorized to find him guilty of manslaughter. And this rule has since been followed. It would therefore seem to be sound doctrine that on a subsequent trial of an accused person for manslaughter, where he had previously been acquitted of murder of the first or second degree, and there was evidence reasonably tending to show that he was guilty of murder of either the first or second degree, and not guilty of manslaughter, it would be the duty of the court, especially when requested, to instruct the jury that, if they believed the evidence established the guilt of appellant of either murder of the first or second degree to acquit him altogether. We note in this connection that the Assistant Attorney-General makes a strong argument in opposition to this rule, contending that inasmuch as the Fuller case, supra, holds that the rule does not apply where a party has been convicted of murder in the second degree, because malice, as stated in that opinion, applies to both degrees of murder, the same doctrine should apply where the accused has been convicted of manslaughter; arguing, as he does, and citing authority to the effect, that malice is also an essential ingredient of manslaughter. We are inclined to agree with the Assistant Attorney-General that malice does pertain to a charge of manslaughter, but not malice aforethought, for this is confined solely to murder. But however the rule laid down in Parker's case came about, it has been followed for a long time, and we are not inclined to overturn it. Conde v. State, 35 Texas Crim Rep., 98.

The only question then for our consideration is, was the testimony of such a character as to require the requested charge? We have examined the record carefully in this regard, — especially those portions which have been called to our attention by appellant's counsel in his able brief. Such expressions as appear to have been made by defendant before the homicide with reference to the deceased do not seem to indicate any malicious design; that is, malitia præcogitata, which characterizes murder. For instance, appellant is shown to have stated on one occasion, prior to the homicide, that deceased objected to his going to his house to see his daughter, and that he did not want to go there and raise a racket. And again, on the day of the homicide, he is shown to have stated that he guessed that, if deceased found out that he had been to an entertainment with his girl, he would stamp it out of him; that deceased was a better man physically than he was, and all that he had to defend himself with was his pocketknife. These expressions, to our minds do not indicate an aggressive mood on the part of appellant, but rather a spirit of forbearance on his part; that he had some apprehension that an attack might be made on him for his attentions to deceased's daughter; that he would endeavor to avoid same, but, if attacked, he would have to defend himself. The record also discloses some expressions of appellant made immediately after the homicide. For instance, his remark to Corbin, as he was being carried away from the scene of the difficulty, to the effect that he had killed Jennings, that he had cut his damned heart out; and also his expression to Dr. Elder, about the same time, when the doctor, after examining his cut hand, asked "if all his hollooing was about the little cut on his hand," to which defendant replied, "You just ought to see the other fellow." These expressions under some circumstances might suggest malice, but when it is remembered that the fight was just over; that appellant had been engaged in a serious struggle, in which he received several severe hurts and bruises, — in the light of the surrounding circumstances these expressions would indicate that they did not issue from a calm and deliberate mind, but from one greatly excited by passion. More especially is this true when viewed in the light of defendant's own testimony (and the jury were bound to regard the matter from defendant's standpoint). This shows that deceased was the aggresor in the difficulty; that he first approached appellant, who was attending to his own business, took him from the company where he was engaged in conversation, and at once began to vilify and abuse him; stating to him, among other things, that he had whipped his daughter that morning for going with him (appellant) the night before. His language, from all the witnesses who heard the conversation, was exceedingly denunciatory. He told appellant that he was no gentleman, and had no principle; that he was a coward and liar; and, when appellant retorted that he was another, he then struck him in the face a severe blow, which dazed him. Appellant had his knife in his hand at the time whittling, and, as they clinched, began cutting deceased. During the progress of the difficulty, and before the fatal blow was struck, the parties appear to have separated for a short interval, when deceased got a rock, and either struck, or was about to strike appellant. At this juncture he rushed upon him, and with the knife inflicted the mortal wound. In this connection it must be remembered, all the time, that appellant had reason to believe that deceased was armed and prepared for the conflict. Under these circumstances, it occurs to us that the only real issue in the case was manslaughter or self-defense. In the light of the facts, we fail to see how any honest jury could have rightly found appellant was not at the time of the difficulty excited by passion, for all the evidence tends to show this. And, moreover, it is difficult for us to understand how a jury could say that adequate cause did not exist. Deceased struck him the first blow, and appellant, who, of all the witnesses alone could know, states that the blow was a hard one and dazed and hurt him. This the law itself makes adequate cause; and, in addition, this blow causing pain was reinforced by other circumstances of a very aggravated character. The fact that immediately preceding the blow deceased informed appellant that he had whipped his daughter that morning for going with him, in itself, would excite passion in any honorable person, especially when that person was suitor of the deceased's daughter. Reviewing the entire record in this case, it occurs to us that the testimony relied on by counsel as a predicate for the requested charge does not tend to show that malitia præcogitata characterizing the offense of murder. On the contrary, under the evidence, appellant could only be convicted of manslaughter. The jury found him guilty of this offense, and assessed against him the lowest penalty, and we can see no reason to disturb their verdict. The judgment is affirmed.

Affirmed.

DAVIDSON, Presiding Judge, absent.

BROOKS, JUDGE.

I merely concur in the disposition of the case.

JAMES TURNER v. THE STATE.

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