Barnes v. State

DAVIDSOH, Judge.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at confinement in the peni-' tentiary for a term of three years; hence this appeal.

Two assignments of error are'urged which require notice: First, the ■court should have given a charge on aggravated assault; and second, the court should have instructed on threats, in connection with the charge on ■.self-defense.

With reference to the first contention, we would simply observe that we do not believe that there is any testimony in the record which required an instruction on aggravated assault. It was either an assault with intent to murder or a case of self-defense.

The charge given on self-defense was in the following language: “On the law of self-defense you are further instructed that if, from the acts of J, B. Landrum (if any), or from his words used at the time or prior *188 thereto (if any), coupled with his acts (if any), there was created in the mind of the defendant a reasonable apprehension that he (defendant) was in danger of losing his life or of suffering serious bodily harm at the hands of said J. B. Landrum, then the defendant had the right to defend himself from such danger as it appeared to him at the time, viewed from his standpoint,” etc. The theory of the State, supported by its evidence, was that the prosecutor, in company with one Gaines, went to the field where appellant, his wife and little son, were picking cotton, for the purpose of settling an account which appellant owed him. Appellant disputed an item in the account, and prosecutor remarked “that he understood that he (appellant) had told an officer who came there a few days before to levy on his corn that he (prosecutor) was a liar; that he did not owe me but two dollars. Appellant then said, ‘Yes, you are a damn liar/ and pulled his pistol, and began to fire at me. He pulled his pistol, and fired at me, before I made any move to get my pistol, and began shooting at me. I afterwards got out my pistol, and shot at him several times.” This was substantially the testimony of both the prosecutor and Gaines as to how the difficulty occurred. Appellant, his wife and son, were all witnesses as to what occurred, and they supported the following theory of the case: “That prosecutor, Landrum, and Gaines came to the field that morning. Prosecutor accosted defendant, and said, ‘Tom, I have come to settle with you/ and began firing on me with a pistol; and Mr. Gaines said, ‘Shoot, shoot him!’ and he began firing. After Mr: Landrum had fired two shots, appellant pulled his pistol, and shot at the prosecutor, and also at Gaines.” He then reached in a pile of cotton, and got a shotgun, and both parties left the scene of action, and he fired one shot with his gun at the prosecutor. The appellant also proposed to prove by three witnesses, to wit, his wife, son, and brother, threats made the day before to take his (appellant’s) life, and which were communicated to appellant. They state substantially that the prosecutor came to appellant’s house on the day before the difficulty, inquired for appellant, and was informed that he was not at home. He told them to tell appellant, when he came back, to prepare himself, for he (prosecutor) was going to settle with him, and fix himself to sleep a long sleep. Appellant also testified that he carried his gun and his pistol to the field the next day to protect himself, in anticipation of an attack by the prosecutor on account of the threats made; that he left the gun and pistol in the pile of cotton, and, when he saw the prosecutor and Gaines coming into the cotton field, he went to the pile of cotton, to be convenient to his gun and pistol; and that he did not pick up his pistol until he was shot at by the prosecutor.

How, on the case as stated by appellant, he contends that in conjunction with the charge on self-defense, or by a distinct and separate charge, the court should have instructed the jury on threats made by the prosecutor to take his life. It may be stated in general terms that the charge of the court included threats, inasmuch as the court instructed the jury that, in judging of the acts of prosecutor, they were to consider in that connection his words used at the time, or prior thereto, and that the ex *189 pression “prior thereto” could have no other allusion than to the previous threats which had been proven. But concede that this charge did not embrace the question of threats,—that is, that the charge in that respect was not emphatic; then, was this such a case as demanded of the court a specific charge on threats ? We are of opinion that it is not. Where in a case of murder, or an assault with intent to murder, or in any character of an assault and battery, except an assault with intent to rape, etc., the defendant relies upon threats communicated, the threats can serve but two purposes: First, to solve the probability as to who began the violence; second, to give character to or intensify an act of the adversary. To illustrate: A and B are quarreling or engaged in a wordy altercation. B places his hand to his hip. A shoots or shoots at or strikes him. In the absence of threats, the act of A would not have that significance as if, under the same state of facts, B had made threats which had been communicated to A. Take the case in hand: There was a dispute between the prosecutor, Landrum, and appellant, as to the amount appellant owed the prosecutor. The prosecutor places his hand behind him, or to his hip; and appellant draws a pistol, and shoots at him. Threats communicated would have an important bearing in such case. But suppose that the prosecutor, instead of merely placing his hand to his hip or behind, draws a pistol, and fires at appellant; threats would have no bearing on the case, because appellant would be perfectly justified in shooting independent of threats. Now, there is no act of the prosecutor, under the appellant’s theory, which can be viewed in the light of threats, so as to give significance thereto. If appellant’s theory be true, he did not need the threats to acquit him. The act of the prosecutor was such as to require no explanation. The prosecutor shot at him without any provocation whatever; and, if the jury did not believe this there was no theory of the case presented by the evidence in which threats could have figured at all. Threats, as before stated, are used for the purpose of giving character and significance to doubtful cases; but, where the case is one in which the adversary uses a deadly weapon in a deadly manner, threats can serve no purpose whatever, save and except as tending to shed light upon who began the difficulty. If the jury failed to believe the theory of the defense, then they believed that of the State, which was that, without any provocation whatever, appellant made a deadly assault upon the prosecutor. If the jury believed the defendant’s testimony, a verdict of not guilty should have been rendered, whether or not threats had been made.

It is contended by appellant that the court should have instructed the jury that, where a deadly weapon was used, the presumption obtains that the party using it intended to kill. This is a correct proposition of law; but was there injury to the appellant in failing to submit this proposition? Evidently there was not; for, if the prosecutor did in fact shoot at appellant under the circumstances described in his theory of the case, no jury with any degree of intelligence could have had any doubt as to his intention, it being evident that it was for the purpose of killing appellant. So, we see no injurious error in refusing to submit this principle *190 of law.. The appellant’s theory of the case may be true. The jury, however, have decided adversely to him, and adopted the theory of the State. Under such circumstances, we can not interfere. We have found no reversible error, and the judgment is affirmed.

Affirmed.

[Mote.—Appellant’s motion for a rehearing was overruled without a written opinion.—Reporter.]