
    (85 Tex. Cr. R. 121)
    FREAD v. STATE.
    (No. 5122.)
    (Court of Criminal Appeals of Texas.
    March 26, 1919.)
    1. Homicide <§=>124 — Defense of Property.
    Where evidence tended to show a homicide, justified under Pen. Code 1911, art. 1105, as committed on a person taking the slayer’s property at night while at place of taking, the qualification of an instruction thereon by stating that, if defendant killed deceased in pursuance of a previously formed design, and not to prevent theft of his corn, the killing would not be justified, was erroneous. "
    2. Homicide <§=>303 — Defense of Property —Instruction—Former Acts of Deceased.
    Where facts tended to show a killing, justified under Pen. Code 1911, art. 1105, as committed upon deceased while he was taking defendant’s property at night while at place of taking, an instruction that former thefts by deceased would not justify the homicide was erroneous, where there was no contention that defendant’s arrest and shooting of deceased was for past thefts, as his act would be attributed to the theft at time of the killing rather than to former thefts.
    3. Homicide <§=>298 — Instruction—Arbest— Authority.
    Where defendant, as authorized by Code Cr. Proc. 1911, arts. 259-263, arrested deceased while committing a felony or breach of the peace, such as theft in defendant’s presence, and attempted to hold him until he could bring officers, and where deceased had his wife bring a gun, the court should have charged as to defendant’s authority to make the arrest under the facts.
    4. Homicide <§=>111, 300(1) — Self-Defense— Instruction.
    Defendant, who discovered deceased in his corncrib stealing corn, and who attempted to arrest him, as authorized by Code Cr. Proc. 1911, arts. 259-263, when deceased’s wife, at his request, came with a shotgun, had right to prevent deceased from securing it and using it, and court should have so charged.
    5. Homicide <§=>145, 286(1) — Intent to Kile —Presumption.
    Where defendant had discovered deceased in his corncrib at night, and had undertaken to arrest and hold him for the officers, the court should have charged that, if deceased was about to secure a gun from his wife, the presumption would be that he intended to kill defendant or to inflict serious bodily injury.
    6. Homicide <§=>198 — Defense of Property— Evidence. r
    In prosecution for murder growing out of defendant’s discovery of deceased in his corn-crib at night, defendant might show that deceased did not have sufficient corn to have fed his stock for the time shown, and keep it in condition shown, and have remaining the amount shown, as it would tend to show that deceased was stealing defendant’s'corn, when caught by defendant.
    7. Witnesses <§=>407 — Impeachment — Reiteration by Impeached Witness.
    In a trial for murder, where during testimony of widow of deceased several predicates were laid for her impeachment, and she was impeached thereon, it was error to permit her to be again placed upon the stand by the state, and to allow her to then reiterate her former testimony, as after impeachment on proper predicate the matter should rest.
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Jesse Eread was convicted of murder, and lie appeals.
    Reversed and remanded.
    See, also, 204 S. W. 113.
    Hawkins Scarborough and Richard Mays, both of Corsicana, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder; his punishment being assessed at five years in the penitentiary.

He shot and killed Hal Phillips. Deceased married the widow of appellant’s deceased brother about three months after his death, and had been married four or five months- at the time of the homicide. Trouble arose between deceased and appellant. On one occasion a personal difficulty ensued. This resulted in the discomfiture of appellant in the fight. These troubles grew mainly out of the fact that deceased was appropriating the corn belonging to appellant. Appellant complained to the officers, who advised him to watch his corncrib, and take some one with him. In accordance with these directions, he, on the night of the homicide, took his brother and went to the crib. They secreted themselves in appellant’s part of the crib; the house being divided by a partition wall separating appellant’s part of the structure from that used by deceased. These rooms were used for storing corn. Late at night and towards the early morning the deceased came from his house, about 100 yards away, entered his portion of the crib, and thence over the partition wall into the end of the crib where appellant’s corn was stored. While deceased was securing appellant’s corn, he challenged and held deceased in custody, sending his brother to phone the officers to come. Immediately after his departure deceased undertook to leave the crib. As he was getting out of the house, or just on the outside, he was shot by appellant. At the time deceased was arrested by appellant and before emerging from the crib he called to his wife to bring his gun. She brought it. It was a double-barrel shotgun; both barrels being loaded. Appellant was undertaking to hold the deceased under arrest, and both, it seems, got outside of the house. When the wife reached her husband with the gun, or within a few feet of him, over protest she kept approaching, whereupon appellant shot. In a struggle between deceased’s wife and appellant, he succeeded in getting the gun. There is evidence that deceased had been taking and using defendant’s corn for some time, feeding his hogs and mules. There seems to be no particular issue as to the fact that deceased was using appellant’s corn, which was discoverable from the fact, that deceased’s corn was white, whereas appellant’s was what they called “strawberry color.” Com of the kind that appellant raised was found in the trough out at the place where deceased fed ■ his stock. The deceased’s crop amounted to about 35 bushels, and he had been feeding his stock for some months. His corn had not diminished in proportion to the amount of corn he is supposed to have used. Without further detailing the facts, this is a sufficient statement to bring in review some of the questions presented for revision.

Homicide, under article 1105, Pen. Code, is justified where it is committed upon the person who takes the property of the slayer at night while at the place of the taking, or within gunshot range of said place. This is made justifiable homicide upon the theory of self-defense, and is statutory. Where the facts bring it within the purview of this statute, the slayer is not criminally liable. See Branch’s Ann. Pen. Code, art. 1105, and authorities cited under this statute.

Exceptions to the charge were timely urged, and requested instructions asked, but refused, covering some of the phases of the case. The court in a general way charged the statute, but he qualified it by instructing the jury that, if defendant killed deceased in pursuance of and in execution of a previously formed design to kill, and not to prevent the theft of the corn then béing committed, such killing would not be justified, though done in the nighttime and while deceased was stealing defendant’s corn. This charge should not have been given. If deceased was stealing the corn, or attempting to do so, appellant was justified in the killing. ' The law under such circumstances justifies the homicide, and it is not a question of previous ill will, but one of legal right or justification. The law of self-defense is not to be abridged by such ill will, where deceased places himself outside the law and becomes the wrongdoer. Malice may exist in the mind of the slayer, but it does not debar him the right of self-defense, if the causes exist which bring him within the terms of the law of self-defense. He may desire to slay, but if the deceased attacks wrongfully, and so as to bring about the act of defendant in self-defense, he is entitled to legal protection for the homicide; and this is 'true, generally speaking, whether it is done under this or any statute with reference to self-defense which justifies or exonerates from criminality. This underlying proposition pervades all of our laws and jurisprudence with reference to self-defense. The statute relieves the slayer of criminal responsibility when he slays him who at night steals his property, and is at the place of the theft, or within gunshot range of it. It does, not require that he be free of ill will in order to justify such act under the statute. In such event the deceased places himself outside the law as much as if he was making an -unlawful attack threatening the life of the slayer. The slayer under such circumstances is within the law, and protected by it.

In this connection the court also charged that former thefts by deceased would not justify the homicide. This rather emphasizes the error in the charge already mentioned. It had the effect, or could legally impress the jury with the idea that the ' killing may have occurred because deceased had been stealing appellant’s corn prior to the time of the homicide, and not on the occasion of the killing, and for this reason he fired the fatal shot If deceased was not taking, or attempting .to take, appellant’s property at the time of the killing, appellant was not justified, and could not avail himself of self-defense. If he was within the terms of the statute, it would not matter as to the condition of his mind or purpose from the former thefts. His right to act would be based upon circumstances upon which he did act. The idea underlies the court’s charge that previous malice would defeat self-defense, though he shot deceased in self-defense. Deceased was under arrest, and was seeking to relieve himself by calling for his gun. There was no contention that the arrest was for past thefts. It was for the present theft. It is well settled that, as between prior causes and that occurring at the time of the difficulty, the latter will be looked to rather than the former. Former thefts, it is true, became a part of the case, as shown by appellant’s complaint to the officers and his presence in the corncrib at the time of the trouble. It was the inducing cause for his presence in his crib. The former thefts, however, would not deprive him of acting as he did at the time he did act in regard to the then occurring theft. His act would be attributed to the theft at the time of the killing, rather than to former thefts. The court should not have charged the jury with reference to former thefts as a basis for motive or malice. It was a charge, also, on the weight of the evidence. If a charge was thought necessary to be given in this connection, tlie jury should have been charged that they should look to the present cause, and not those which had previously occurred.

Exception was reserved to the charge because of its failure to instruct the jury with reference to appellant’s right to arrest deceased under the circumstances mentioned. The court did not so charge. Appellant requested a special instruction to this effect, but it was refused. Appellant contends that this error is magnified by reason of the fact that the state contended in argument before the jury that appellant was the wrongdoer in having deceased illegally under arrest; that he had no legal authority to arrest him. Appellant had the right to make the arrest. This is authorized by statute. See articles 259-263, Code Cr. Proc. Under the terms of those statutes a citizen may arrest where there is a felony or breach of the peace being committed in his presence. To this end he is clothed with the same authority as is an officer to make such arrest. Alford v. State, 8 Tex. App. 545. We are of opinion that the court should have given the charge with reference to the authority of appellant to make the arrest under the facts. If appellant had no authority to make the arrest, the arrest was illegal, and the deceased was restrained of his liberty in violation of law. If he had the right to arrest, the deceased was legally held. Appellant was trying to hold him until he could bring the officers, and had sent his brother for the purpose of securing their presence. The deceased called for his shotgun. His wife had brought it, and was within a few feet of him. This would further place deceased in the wrong.

Another question is suggested from the standpoint of self-defense. Appellant had the right, when the wife came with the shotgun, to prevent the deceased from securing and using it. He had had a previous difficulty with deceased, in which he had been beaten by deceased with brass knucks. His wife was within a few feet of him with the shotgun, brought by his command, with the evident purpose of using it. The court charged in a general way with reference to the law of self-defense as to this phase of the case, as he did on threats. The issue of threats was raised by the testimony. Upon another trial the court should be more specific with reference to the charge on self-defense from this viewpoint. The court should also charge, as contended by appellant, that, if deceased was about to secure the gun, the presumption would be that he intended to kill or inflict upon appellant serious bodily injury. These matters are treated in a general way, without specifically discussing each question suggested for revision by the exceptions to the charge and special requested instructions refused. The court will understand upon what theory this case should be tried upon these issues.

A bill of exceptions was reserved to the refusal of the court to permit defendant to prove:

“That the deceased had two hogs and a pair of mules, and that they were fat and in good condition at and for some time prior to the killing. That after deceased married the widow of Ms [appellant’s] deceased brother, they gathered and housed from Mrs. Fread’s crop, during the year 1915, not exceeding 35 bushels. That during the fall of 1915, and after said corn had matured, the deceased fed out of said com said hogs and mules, and at the time of the killing had on hand as much as 10 bushels.”

The court qualifies this by stating that a perusal of appellant’s testimony discloses that he testified to the number of hogs and number of mules owned by deceased, Phillips, and his wife. Upon another trial, if the testimony is offered, the defendant should be permitted to show these conditions, and that deceased did not have a sufficient amount of corn to have fed his stock for the length of time that he did, and keep them in the condition they were, and have still remaining the number of bushels mentioned. This would tend to show that deceased was stealing the corn of appellant. This whole case revolved around the fact that deceased was stealing appellant’s corn, and led to his being caught in the act the night of the tragedy.

Another bill of exceptions recites the fact that, while the widow of deceased, Phillips, was testifying, several predicates were laid for her impeachment, and that she was impeached in accordance with those predicates. After the witnesses had so testified, she was again placed upon the stand by the state, and permitted, over objection, to reiterate her former testimony. It was but a reiteration of what she had previously testified. Upon another trial this should not' occur. A witness may be cross.-examined, and impeached, upon proper predicate. The matter should rest at that point. The impeached witness should not be again permitted to reiterate her former testimony. If the state could have the witness reiterate her testimony, the defendant would have the right to recall his witnesses, and have them reiterate their impeaching evidence. The law does not justify this character of proceeding. The assertion of the facts upon one side, and a denial upon the other, leaves the testimony before the jury for their decision as to the weight to be given it.

The judgment is reversed, and the cause remanded. 
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