274 S.W. 603


DUNN
v.
STATE.


(No. 7238.)


Court of Criminal Appeals of Texas.


November 26, 1924.


On Motion for Rehearing June 26, 1925.

Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

Tom Dunn was convicted of aggravated assault, and he appeals. Affirmed.

Boyd, Bell & Smith, of Teague, and Callicutt & Johnson, of Corsicana, for 
appellant.

James Kimball, Dist. Atty., of Groesbeck, Williford & Geppert and R. M. Edwards,
all of Fairfield, W. J. Bryant, of Wortham, and Tom Garrard, State's Atty., and 
Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The conviction is for aggravated assault; punishment fixed at confinement in 
the county jail for a period of six months and a fine of $1,000.

In the town of Wortham, the appellant and his son, Jim Dunn, took part in an 
affray in which Lynn Harris and Charlie Harris received gunshot wounds. Some 
two months antecedent to the occurrence, Sol Dunn, a brother of the appellant, 
was killed by a shot fired from a gun in the hands of Lynn Harris. Harris 
claimed that the shooting was accidental, but the appellant believed that it 
was intentional, and was endeavoring to bring about an indictment.

The testimony of several eyewitnesses, which is in substantial accord with that 
of Lynn and Charlie Harris, is in substance this: Lynn and Charlie Harris were 
in front of a garage, into which the appellant and his son entered. Upon their 
emerging therefrom, the shooting of both Lynn and Charlie Harris took place. At 
the time they entered the garage, Lynn Harris was sitting in a truck, and 
Charlie was standing by an automobile. When they emerged, Lynn Harris was 
standing by the truck, and Charlie was sitting down in the seat of the car. 
Lynn Harris, according to his testimony, did not see the appellant until he 
heard him say: "Harris, here is your chance; here is where I've got you" — and
immediately fired, striking Harris in the neck. He staggered into the street 
and fell. Appellant continued firing, and two additional shots took effect 
upon Lynn Harris, when he regained his feet and fled. He had brought his pistol
with him, but had left it in the garage. Charlie Harris claimed that, when he
saw that his

Page 604

brother had been shot, he jumped out of the car and started towards him, when 
he was fired upon by both the appellant and his son. One of the shots took 
effect and blinded him for a moment, and upon regaining his sight his brother 
had gone.

According to Jim Dunn's testimony, he and his father went to town on business. 
Prior to the occurrence, the two Harris brothers drove through the town in a 
car, but Jim Dunn did not know that they had stopped at the Quick Service 
Garage. He was not aware of the fact that his father had a pistol, as he was 
not accustomed to carrying one. After seeing the Harris brothers, the witness 
told his father that they were in town, and he and his father, at the 
invitation of the witness, went to the garage without knowledge that the 
Harris brothers were there. They passed within 6 feet of Charlie Harris and 
within 15 feet of Lynn Harris, and entered the garage through the west door. 
After transacting their business in the garage, they started home. The father 
said, "Let's go home." The witness replied, "I'll be there in a minute." The 
witness did not see the first shot, and did not know who was doing the shooting.
Upon reaching the door, he saw Lynn Harris going around the corner. He looked 
back at the west door (as he thought that was where the shot came from), when 
he saw Charlie Harris coming out of the car and coming towards the appellant, 
and when he had reached a point about 15 feet from the appellant the witness
said, "Stop," and fired his pistol. His father fired some shots after that 
time, and also fired one about that time. The witness fired two shots at 
Charlie Harris. It appeared to the witness that Charlie Harris was going in 
the direction of his father. The witness said that he did not see Lynn Harris, 
and did not see him lying on the street; that he was not looking at who his 
father was trying to kill; that he did not know where the shots were coming 
from.

According to the appellant's testimony, he had not seen Lynn Harris prior to 
going into the garage, but saw him as he and Jim Dunn entered the garage. No 
conversation took place, though the appellant spoke, and received no response. 
He noticed as he entered the garage that Lynn Harris frowned and gritted his 
teeth. He left through the east door, in order to avoid the Harris brothers, 
and did not know that they had changed their position; but, as he started to 
leave, one of them was in front of each door. The appellant jerked his pistol 
and commenced shooting. Lynn Harris gritted his teeth, and the appellant saw 
his hand move, but did not wait to see what he was going to do. Lynn Harris 
was facing the appellant at the time the first shot was fired. He was not 
aware of the presence of Charlie Harris until he heard a gun fire behind him.
He did not know who fired it. He heard some one come up behind him, but did 
not know who it was. He did not know it was his son, Jim Dunn. He then saw 
Charlie Harris, almost in a run, coming at him, and he thought he was going to
make an attack to help his brother. The witness then fired at Charlie Harris, 
who whirled around and ran. As he did so, the appellant fired again.

The court, after defining the offenses of murder and manslaughter, and 
instructing the jury upon the elements of assault with intent to murder, gave,
in paragraph 9, a charge on aggravated assault, based upon the predicate that 
the mind of the appellant was rendered incapable of cool reflection by an 
adequate cause. In paragraph 10 the jury was given an instruction upon the 
elements of justifiable homicide, and was told in substance that the right 
of the accused to protect himself from death or serious bodily harm at the 
hands of Charlie Harris was based upon real or apparent danger, as viewed from
the appellant's standpoint. In applying the law of self-defense, the court, in
paragraph 11, used this language:

"Now, applying the law of self-defense to this case, you are instructed that, 
although you may believe from the evidence that the defendant, Tom Dunn, shot 
the said Charlie Harris, as alleged, yet if you also believe that, at the time
of doing so, the defendant believed that the said Charlie Harris had made, was
making, or was about to make an attack or assault upon him, which from 
defendant's standpoint at the time, and whatever, if anything may have 
occurred, caused the said Tom Dunn to have a reasonable apprehension or fear 
of death or of serious bodily injury to himself at the hands of the said 
Charlie Harris, and, so believing, the defendant shot the said Charlie Harris, 
or if you have a reasonable doubt as to this, then in such event you will 
find the defendant not guilty, unless you find the defendant guilty of some 
offense, under the instructions hereinafter following."

In paragraph 12 the court qualified the right of self-defense. The charge 
embraces the abstract statement that the law imputes to one the consequences 
of his own wrongful act, using language which was used in the case of Reed v. 
State, 11 Tex. App. 517, 40 Am. Rep. 795 and which is quoted Carlile's Case, 
96 Tex. Cr. R. 41, 255 S. W. 990. In addition to this general abstract 
statement, there is embraced the statement in substance that, if the jury 
believed that at the time of or immediately preceding the firing of the shot 
at Charlie Harris, the appellant made or was making an assault to murder Lynn 
Harris, and that incident thereto he found it necessary, in his own protection, 
to shoot Charlie Harris, his offense would be an assault with intent to murder. 
There was also embraced in the charge an instruction that, if the appellant 
was attacked, or viewed from his standpoint he believed that he was about to 
be attacked, by Charlie Harris, and that this occurred at

Page 605

a time when the appellant was in the act of committing an unlawful assault 
upon Lynn Harris, and was at the time under the influence of passion rendering
his mind incapable of cool reflection, his offense would be aggravated assault.
Following these propositions, the court, in the same charge, embraced this 
language:

"If you believe from the evidence in this case that the defendant, Tom Dunn, 
begun and engaged in shooting at Lynn Harris, if he did, in order to protect 
himself from an unlawful attack upon him by the said Lynn Harris, real, 
apparent, or threatened, or that, just prior to his shooting at Lynn Harris, 
the said Lynn Harris, by some act then done, caused the defendant, Tom Dunn, 
to believe, and he did believe, that the said Lynn Harris was then and there 
about to make an assault upon him, and, so believing, the defendant, Tom Dunn, 
shot at the said Lynn Harris to protect himself, and you further believe that, 
while so engaged in the shooting or affray with Lynn Harris, you find and 
believe the said Charlie Harris did some act or made some demonstration that 
caused the defendant to believe, and defendant did believe, that the said 
Charlie Harris was then making or about to make an attack or an assault upon 
him, and from anything that may have happened caused the defendant to have a 
reasonable apprehension or fear of death or serious bodily injury to himself 
at the hands of the said Charlie Harris, and, so believing, he shot the said 
Charlie Harris, then in such event you will find the defendant not guilty."

Many objections are leveled at this paragraph of the charge, but, in our 
judgment, none of them are tenable. It would have been appropriate for the 
court, in the immediate connection with this charge, to have coupled the law 
of reasonable doubt; but no criticism of the charge is made upon that ground 
in the exceptions urged against it. If Lynn Harris was about to be murdered by
the appellant, he would not have had a right to shoot Charlie Harris for 
endeavoring to protect his brother. Guffee v. State, 8 Tex. App. 187.

The jury was instructed specifically that they were not to convict the 
appellant for shooting Lynn Harris, and that the testimony upon that subject 
was restricted to its bearing, if any, upon the appellant's conduct in 
shooting at Charlie Harris. The court instructed that there could be no 
conviction, unless they were satisfied as to the guilt of the appellant beyond
a reasonable doubt, and used this language: "This reasonable doubt extends to 
every phase of the case." If the appellant wrongfully shot at Lynn Harris under 
the influence of a sudden passion induced by adequate cause, he would not be 
free from guilt; but the grade of the offense would be modified, and, if his 
attack upon Lynn Harris was justified upon the theory of self-defense, then he
would have been likewise justified in protecting himself from the injury of a 
threatened assault by Charlie Harris. We understand that the court so 
instructed the jury in paragraph 12 of the charge, as well as in the other 
paragraphs mentioned. In restricting or qualifying the right of self-defense, 
it occurs to us that the trial court was warranted by the law of imperfect 
self-defense. See Branch's Crim. Law, § 463; Peter v. State, 23 Tex. App. 684,
5 S. W. 228; Carlile v. State, 96 Tex. Cr. R. 41, 255 S. W. 990, and cases 
there collated.

Appellant excepted to the charge of the court, and presented a special charge,
which was refused, in which he claimed that the charge of the court was 
incomplete, in failing to embrace the law of threats with reference to the 
assault made by the appellant upon Lynn Harris, and in failing to apply the 
law to the facts and evidence as bearing upon the shooting of Lynn Harris by 
the appellant. The position taken by the appellant is that since his right to 
defend against the threatened attack upon him by Charlie Harris was made to 
depend in part upon the fact that he was right, or acted lawfully, in 
attacking and shooting Lynn Harris, his rights were not protected, in the 
absence of an instruction to the jury by which they might be informed of the 
appellant's right to act upon the appearance of danger, or upon the act of 
Lynn Harris indicating his intention to execute a threat previously made and 
communicated to the appellant.

The instructions given the jury were so framed that they were called upon to 
determine whether, in shooting at Lynn Harris at the beginning of the affray, 
the appellant's act was lawful or unlawful. In the charge quoted the court 
undertook to tell the jury the circumstances under which it would be lawful.
If evidence of communicated threats was before the jury, it was necessary 
that they know its bearing upon the appellant's rights, in order to be fully
advised with reference to whether his act in shooting at Lynn Harris was lawful
or unlawful. The statute (article 1143, Pen. Code) defines the law, which is
in substance that such evidence of threats would not justify the assault, 
unless by some act then done Lynn Harris manifested an intention, as viewed 
from the appellant's standpoint, to execute the threat.

The difficulty in which this court finds itself is to determine whether there
is in the record evidence of communicated threats. As we understand the facts,
the brother of the appellant had been killed by a shot from a gun in the hands
of Lynn Harris. No indictment had been found, Harris claiming that the shooting
was accidental. The appellant regarded the homicide as intentional, and was 
endeavoring to bring about an indictment of Lynn Harris. He and two other 
persons had gone to Lynn Harris to obtain the gun with which Sol Dunn was 
killed. As

Page 606

we understand it, the testimony relied upon to establish the threats is this:

Appellant had been told by the witness York that Lynn Harris had said that, 
when he was approached by the appellant and others, who obtained the gun from 
him, he threw his automatic off safety and thought of getting between his horse
and open fire, but as there were three in the party he did not do so. Appellant
had heard that Lynn Harris had gone armed since that time, and that he had 
stated to another party that he put his gun off safety on Sunday before the 
shooting on Monday. Appellant had also been told by Bob Dunn to watch the 
Harris brothers, and to keep his eyes open, as he had heard that Lynn Harris 
was "kind of worked up" about the appellant having the gun with which Sol Dunn
had been killed. On the day before the shooting, Mr. Butler told the appellant
that he had learned from Sheriff Mayo that he (Mayo) had traded to Lynn Harris 
a house and lot for 50 acres of land, and that Harris had put out the report 
that he had sold his land for cash; that, in answer to Mayo's inquiry as to the
reason for this report, Harris said: "I have a reason; I thought I might kill 
a man."

To our minds the record is void of evidence from which the jury might have 
found that any threat to take the appellant's life was made by Lynn Harris or 
communicated to the appellant. The evidence to which we have adverted was 
properly received as indicating the state of mind of the appellant, as well as 
the state of mind of Lynn Harris, and as bearing upon the issue of self-defense;
but it is not regarded as raising an issue requiring a charge on the law of 
threats.

After instructing on the law of assault with intent to murder, the court, in 
paragraph 7, told the jury that, if they believed beyond a reasonable doubt 
that the appellant was guilty of some grade of assault, they should give him 
the benefit of any reasonable doubt which they entertained between the offense
of assault to murder and some lower grade of assault. After defining 
manslaughter, and submitting the issue of aggravated assault to the jury, the
court, in paragraph 9, of which complaint is made, followed the procedure 
approved in the case of Pitts v. State, 29 Tex. App. 374, 16 S. W. 189; also 
Moore v. State, 88 Tex. Cr. R. 630, 228 S. W. 218, Littleton v. State, 91 Tex.
Cr. R. 210, 239 S. W. 202, and Alley v. State, 92 Tex. Cr. R. 194, 241 S. W. 
1025.

We fail to perceive in the record any evidence which would demand that the 
court instruct the jury upon the right to defend the life of the appellant's
son.

Several of the charges requesting the submission of the issue of aggravated 
assault it is deemed unnecessary to discuss, for the reason that this issue was
embodied in the court's charge, and the jury acquitted the appellant of the 
assault with intent to murder.

We think there was no error in receiving and in refusing to exclude the 
testimony to the effect that, after the shooting of Charlie Harris, the 
appellant pursued Lynn Harris. In our judgment, it was a part of the res 
gestæ, and was relevant upon the intent of both the appellant and his son, 
especially since the latter testified, as a witness in behalf of the appellant,
to facts tending to exculpate the appellant from any malice or premeditation 
in assaulting Lynn Harris.

Appellant presented the theory that Lynn Harris had solicited or induced Sol 
Dunn to go hunting, and had intentionally killed him. In view of the evidence 
by the appellant, presenting the theory and contention that the shooting of 
Sol Dunn by Lynn Harris was premeditated, the court was not in error in 
receiving the testimony of Mrs. Nash to the effect that it was Sol Dunn who 
suggested the hunting trip with Lynn Harris.

The testimony of Mrs. Yoe, going to show that, after shooting Lynn Harris and 
Charlie Harris, appellant pursued Lynn Harris with a pistol in his hand, was,
we think, properly received.

The statement of facts is unusually long; the bills of exception are numerous.
We have carefully read the evidence, examined the bills, and have reviewed 
the charge of the court. Space forbids a full recital of the evidence, or a
discussion in detail of all the complaints of the action of the trial court 
reflected by the bills of exception. Considered as a whole, we are of the 
opinion that the court's charge adequately protected the rights of the 
appellant, and gave to the jury accurate instruction for their guidance in 
solving the issues raised by the evidence, and is not amenable to any of the 
objections urged against it.

Our examination of the record leads us to the conclusion that the proper 
disposition of the case is to order an affirmance of the judgment of the court
below. This is accordingly done.


On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant reasserts that certain instructions 
given by the court were incomplete and erroneous, and that error was also 
committed in refusing certain requested special charges. The record is 
voluminous, both upon the facts and by the great number of bills of exception, 
most of which relate to instructions given or refused. We have again examined 
those matters which appeared to us most important. They were all considered 
and discussed in our former opinion. It would be interesting to review them 
further in the light of the motion, but, believing proper disposition has been 
made of the case, we deem it unnecessary. We believe nothing

Page 607

is contained in the instructions given, nor in those refused, which was 
calculated to injure the rights of appellant, and the record fails to reveal 
that he has not had a fair and impartial trial. Having reached this conclusion,
article 743, Code of Criminal Procedure, forbids a reversal of the judgment.

The motion for rehearing is overruled.