
    MOORE v. STATE.
    (No. 6686.)
    (Court of Criminal Appeals of Texas.
    Feb. 15, 1922.)
    1. Homicide <®=>107 — Killing to prevent statutory rape Justifiable.
    A killing to prevent statutory rape under Pen. Code 1911, art. 1063, amended by Acts 35th Leg. (1918) 4th Called Sess. c. 50, § 1, is not unlawful if, viewed from the standpoint of the person committing the homicide, the necessity therefor is reasonably apparent, in view of Pen. Code 1911, arts. 1029,1105, subds. 1-3.
    2. Homicide @=>299 — Evidence held to call for instruction as to killing to prevent rape.
    Where accused testified that deceased was paying her 17 year old daughter attention and that she caught him with one arm around her daughter and the other hand under her clothes, and was in such position at the time she killed him, held, that the court erred in refusing to charge concerning right to kill to prevent the commission of a rape, under Pen. Code 1911, art. 1063, as amended by Acts 35th Leg. (1918) 4th Called Sess. c. 50, § 1, and Pen. Code 1911, arts. 1029, 1105, subds. 1-3.
    3. Criminal law @=>830 — Erroneous requested charges held adequate to call attention to omission to charge.
    Special charges concerning the right to kill to prevent rape, though inaccurate, were adequate to call attention to omission of the court to charge on the issue.
    4. Witnesses @=>344(1) — Impeaching accused as to pulling a man’s hair held improper.
    In prosecution of woman for homicide, it was error to permit accused to be asked if it was not a fact that she had pulled a certain man’s hair six or seven years before the trial, and, upon her denial, to permit such man to testify that she did pull his hair, such hair pulling being in no sense connected with the transaction in question, though the issue of suspended sentence was involved.
    5. Criminal law @=>982— Issue of suspended sentence does not permit proof of specific facts.
    The issue of suspended sentence permits proof of reputation, but it does not ordinarily permit proof of specific facts.
    6. Criminal law @=>1169(1) — Introduction of evidence held harmless.
    In a homicide case, introduction of evidence that six or seven years before the trial accused pulled a man’s hair, introduced to impeach accused, who denied having done so, was harmless.
    Appeal from District Court, Tyler County; D. F. Singleton, Judge.
    Jennie Moore was convicted of murder, and appeals.
    Reversed and remanded for new trial.
    
      Dies & Wheat, of Woodville, for appellant.,- ' ’
    R. G. Storey, Asst. Atty. Gen., for the 'State. •,
   MORROW, P. J.

The conviction is for murder; punishment fixed at confinement in the penitentiary for a period of five years.

The deceased, Ellis Johnson, was shot and killed while in the house occupied by the appellant, her husband and daughter.

To state’s witnesses entering the house immediately after the shot was fired, appellant said: “I think he is dead. X think I gave him a good shot”; that she also said she “had killed a man in defense of her baby child.” The wound indicated that the shot had entered on one side and come out on the other, probably piercing the heart. To an officer, appellant said: “How soon could I get that hound out of my house;” that she'desired to do so as soon as possible.

The deceased was a divorced man, about 33 years of age. There is considerable testimony with reference to why the deceased married his first wife and caused a divorce.

Appellant testified that she was about 50 years of age; had been married 29 years; that she had six children, three of whom were still living; that only her daughter Nell was present at home at the time of the homicide; that at the time her daughter was 17 years old; that deceased was paying her attention; that she caught the deceased with one arm around her daughter and the other hand under her clothes; and that this was the condition at the time she killed him.

As we understand her testimony, she was in an adjoining room to the parlor and the door was opened. The deceased and the girl were in the parlor. She noticed that everything was quiet and looked into the room and saw the deceased and her daughter in the position named; that upon seeing him, she walked right up to him and shot him, saying to him: “You have ruined my girl, have you?” and did not wait for an answer; that her daughter screamed: “You have killed him, don’t kill me.” When appellant shot him, she told him: “I caught you ruining my daughter.”

Appellant advances the' proposition that her daughter being under 18 years of age, an issue was raised as to whether she killed the deceased to prevent the offense of rape; and special charges were presented and refused seeking to present this theory of the law to the jury. With certain limitations, the rule seems to be general that a homicide may be justifiable when committed to 'prevent the commission of a felony by violence. Cyc. vol. 21, p. 827; Fletcher v. Commonwealth (Ky.) 83 S. W. 588; Brabston v. State, 68 Miss. 208, 8 South. 326; State v. Clark, 134 N. C. 698, 47 S. E. 36; Monson v. State (Tex. Cr. App.) 63 S. W. 647; Leslie v. State, 42 Tex. Cr. R. 65, 57 S. W. 659; Glover v. State, 33 Tex. Cr. R. 224, 26 S. W. 204; Cunningham v. Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55. The right to prevent the commission of a felony is not confined to one against the person, but may be applicable to one against property. Cyc. vol. 21, p. 830; Sims v. State, 36 Tex. Cr. R. 154, 36 S. W. 256; Id., 38 Tex. Cr. R. 637, 44 S. W. 522; Laws v. State, 26 Tex. App. 655, 10 S. W. 220; Surges v. State, 88 Tex. Cr. R. 288, 225 S. W. 1104; Gerard v. State, 78 Tex. Cr. R. 300, 181 S. W. 737; Newman v. State, 58 Tex. Cr. R. 446, 126 S. W. 578, 21 Ann. Cas. 718; Joy v. State, 57 Tex Cr. R. 102, 123 S. W. 584.

The application of the principle to facts such as are revealed in the present record has not been made so far as we are aware. In this state, we have a statute which declares that homicide is permitted by law when inflicted for the purpose of preventing the commission of several named offenses, including rape. Penal Code, art. 1105. Ffom that statute, we quote subdivisions 1, 2, and 3, as follows:

“1. It must reasonably appear by the acts or by words, coupled with the acts of the person killed, that it was the purpose and intent of such person to commit one of the offenses above named.
“2. The killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense.
“3. It must take place before the offense committed by the party killed is actually completed; except that, in case of rape, the ravisher may be killed at any time before he has escaped from the presence of his victim, and except, also, in the cases hereinafter enumerated.”

One of the phases of rape is defined by our statute, as:

“ * * * The carnal knowledge of a female under the age of eighteen years, other than the wife of the person, with or without her consent, and with or without the use of force, threats or fraud. Provided, that if the woman is fifteen years of age or over, the defendant may show in consent cases, she was not of previous chaste character as a defense.” Penal Code, art. 1063, amended by Act of 35th Leg. (1918) 4th Called Session, chap. 50, § 1.

Rape is a capital offense, and this phase of rape has also been construed to include the offense of assault with intent to rape, which is also a felony. Penal Code, art. 1029; Cromeans v. State, 59 Tex. Cr. R. 622, 129 S. W. 1129. It would seem, therefore, that homicide to prevent rape would come within the purview of article 1105, supra. If this be true, then, if it reasonably appeared to the appellant, from the acts of the deceased, that it was his purpose and intent to commit rape, and that some act had been done showing evidently such intent, a homicide in preventing it would not have been unlawful if, viewed from the standpoint of the person committing the homicide, the necessity therefor was made reasonably apparent. Joy v. State, 57 Tex. Cr. R. 103, 123 S. W. 584. We believe in view of the evidence that it was the right of the appellant to have the jury' informed in substance in accord with the views there expressed. They embrace the only defensive theory that the evidence revealed. The commission of the homicide by the appellant was conceded. The mitigating feature of manslaughter was involved and submitted to the jury, but the only theory upon which she could have been justified was, as viewed from her standpoint, that the homicide was necessary to prevent the offense of rápe upon her daughter. While special charges were presented, we do not regard them as accurately presenting the law, but since the issue was not embraced in the court’s charge at all, they were adequate to call attention to the omission and to bring up for review the refusal to supply them.

On cross-examination of the appellant, she was asked by the prosecuting attorney if it was not a fact that she had pulled Jim Vinson’s hair. This she denied. Eater, the state called Vinson as a witness, and he testified that some six or seven years before she had pulled his hair. Other than giving this testimony in rebuttal, the witness Vinson is shown to have been in no sense connected, with the transaction involved in the trial of this case. Exception was reserved to the aetiqn of the court in permitting the question .and in permitting the impeachment. An attempt was made to justify the procedure upon the ground that the issue of suspended sentence was involved. It seems to have been wholly immaterial whether she pulled Jim Vinson’s hair or not. The objection should have been sustained to the testimony upon that ground, and Vinson’s testimony should have been rejected because it was an effort to impeach upon an immaterial issue. The issue of suspended sentence permits proof of reputation, but it does not ordinarily permit proof of specific acts. The passage of the law did not change the rule touching the manner of proving the reputation. Williamson v. State, 74 Tex. Cr. R. 290, 167 S. W. 360; Baker v. State, 87 Tex. Cr. R. 305, 221 S. W. 607; Wagley v. State, 87 Tex. Cr. R. 504, 224 S. W. 688. We do not think the jury would have refused to suspend the sentence because six or seven years before the homicide the appellant had pulled Jim Vinson’s hair. The evidence should not have -been received, but because of its- admission we would not require reversal. We advert to it -merely to avoid its repetition upon another trial and to emphasize our previously expressed view that the application for a suspended sentence does not nullify the rules pertaining to proof of reputation nor obviate their observance.

Because of the denial of what we conceive to have been a substantial right of appellant to have the jury instructed pertaining to the substance of article 1105, supra, as applied to the prevention of rape, we deem it .our duty to order a reversal of the cause and that-it be remanded for another trial. This is accordingly done. 
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