
    GILLIAM v. STATE.
    (No. 8804.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.)
    1. Criminal law <&wkey;369(2) — Evidence tending to defeat defense is admissible, although it shows commission of another offense by accused.
    Any competent evidence which tends to defeat defense is admissible, although it may tend or does show that accused committed another offense.
    2. Criminal law &wkey;>369 (3) — Homicide &wkey;>!60 —That defendant was seen carrying pistol scabbard not inadmissible as showing other offense, but admissible to show preparation, premeditation, and malice.
    In prosecution for homicide, where defense was self-defense, evidence that defendant was seen about 10 days prior to killing wearing pistol scabbard is not inadmissible on ground that it showed commission of another offense by defendant, but was admissible to show preparation, premeditation, and malice.
    3. Criminal law <&wkey;369(3) — In prosecution for homicide', evidence that accused played cards is not evidence of another offense.
    In prosecution for homicide, evidence, that about 10 days before killing, deceased had found defendant playing cards and wanted witness to report the matter, whereupon defendant threatened deceased if he should report him, held not inadmissible as evidence of another offense.
    4. Homicide <&wkey;!58(3) — Conditional threat showing ill will and malice toward deceased is admissible.
    Evidence, that deceased found defendant playing cards and wanted witness to report matter, whereupon .defendant stated that if deceased turned him in he would never remember turning in the next one, is admissible as a conditional threat; such statement showing animosity, ill will, and malice toward deceased.
    5'. Homicide <&wkey; 158(3) — Impersonal or conditional. threats are admissible, where circumstances show they are directed toward deceased.
    Relevancy of threats is not affected by fact that they are impersonal or conditional, wheté circumstances show that they were directed toward or included deceased.
    6. Criminal law <&wkey;l 120(8) — Bill of exceptions complaining of refusal to withdraw evidence containing only objection', without certifying that defendant did not know facts testified to, is insufficient.
    Bill of exceptions complaining of refusal to withdraw evidence and containing only reasons urged for its withdrawal, without certifying as a fact that defendant did not know facts testified to, does not present objections for review, where such evidence had been received without objections, or, if objections had been made to its reception, grounds therefor were not stated.
    7. Homicide <S&wkey;303 — Evidence held to justify instruction on issue of defense of property.
    Evidence held sufficient to raise issue of defense of property justifying instruction thereon.
    8. Homicide <&wkey;299, 300(8), 303 — Where evidence raises defenses that homicide was committed in preventing another felony, or protecting person or property, charges on each defense should be given.
    Where evidence has a tendency to bring case under provisions of both Pen. Code 1911, art. 1105, relating to homicide in preventing commission of other felonies, and article 1107, relating to homicide in the protection of person or property from attack, it is incumbent on court to give charge governing defenses under both .articles.
    9. Homicide <&wkey;l24 — Persons may repel attack on property even to extent of killing aggressor after using every other effort to repel aggression.
    If deceased, by force, attempted to prevent defendant, who was in possession of cotton, from hauling it to gin, defendant had right to use whatever 'force reasonably necessary to repel the aggression on property in order to prevent it from being taken from him, even to extent of killing after every other effort in his power had been made to'repel aggression, in view of Pen. Code 1911, art. 1110, subd. 4.
    Appeal from District Court, Franklin County; R. T.' Wilkinson, Judge.
    Dick Gilliam was convicted of murder, and he appeals.
    Reversed and remanded.
    J. H. Beavers, of Winnsboro, J. A. Ward, of Mt. Pleasant, and Maurice Wilkinson and F. B. Caudle, both of'Mt. Vernon, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Defendant is under conviction for the murder of O. F. Crone. Punishment is 20 years’ confinement in the penitentiary.

Defendant and deceased lived npon land which belonged to a Mr. Horn. Deceased as Horn’s agent had rented to defendant the land worked by him. The killing occurred on the morning of September 20th, at defendant’s home. Friction had arisen between the parties. Some time before the killing two children of deceased had gone to defendant’s house and had been followed by a dog which bit one of defendant’s children, however, not injuring it to any extent. Defendant killed the dog. If deceased raised any disturbance because of this, the record does not disclose it. Some disagreement had come up between defendant and deceased about other matters'referred to in discussing some of the bills of exception. There were no eyewitnesses to the killing save defendant and his wife. Witnesses who arrived at the scene shortly after the homicide described the location of the body of decehsed, which was lying near a gate, and upon asking defendant what the trouble was one witness was told, “I don’t know.” Defendant replied to another witness who remarked, “It looks like you have had some trouble.” “Tes; but it is not worth while to state it here.” Defendant and deceased lived some 400 yards apart. In going from the home of deceased to the land worked by him they went by defendant’s house. Deceased had started from home on the morning of the killing with some of his children, but had forgotten the cotton scales and turned back to get them. The children went on to the field.

Defendant complains because the state was permitted over his objection to prove by the witness Sanders that for a period of about 10 days immediately preceding the killing he had seen defendant off of his own premises wearing a shoulder scabbard for a pistol, on the ground that said evidence was admitting the proof of the commission of another offense by defendant, to wit, unlawfully carrying a pistol. This witness had testified that some 10 days or 2 weeks before the killing defendant had sought to borrow witness’ pistol and also to buy it. He told witness he wanted the gun for protection because he could not afford to fight a man like deceased fair. Witness declined to loan the gun, but defendant went to witness’ house and got it later returning it. Afterwards defendant showed witness a pistol which defendant said he had bought. ¡Defendant admitted while testifying as a witness in his own behalf that he had been carrying a pistol in a shoulder scabbard, but undertook to explain his conduct in this respect by saying he was expecting trouble from some parties in Titus county over some meat which had been stolen from him. It is further in evidence from defendant that he was not on good terms with'deceased on account of deceased not having fixed a well which defendant claims he ought to -have done, and on account of deceased injuring some of defendant’s cotton by driving over the ends of the cotton rows, and also because deceased had" broken one of his double trees. The cases cited by defendant holding evidence of other crimes inadmissible we think have no application in a case like this. It is well settled that any competent evidence which fends to defeat the defense urged is admissible, although it may tend to show or does show another offense. This principle is illustrated by Craig v. State (Tex. Cr. App.) 23 S. W. 1108; Bedford v. State, 75 Tex. Cr. R. 309, 170 S. W. 728; McKinney v. State, 8 Tex. App. 626; Asbeck v. State, 70 Tex. Cr. R. 225, 156 S. W. 925. See, also, Wharton on Homicide, § 598; 1 Bishop, Criminal Procedure, § 1067. Defendant sought to justify himself on the ground of self-defense. The evidence objected to was admissible to show preparation, premeditation and malice.

Objection was also interposed to the state proving by Sanders that about 10 days before the homicide he told defendant deceased claimed to have caught witness and defendant playing cards and wanted witness to go to the county seat and report the matter against defendant, whereupon defendant said if deceased “turned him [defendant] in he would never remember turning in the next one.” The objection was twofold: First, that the evidence sought to ineunmer defendant with proof of another offense (playing cards); second, that the threat was conditional depending on a contingency never shown to have transpired. The first ground of objection is disposed of in the discussion of the preceding bill. The threat would have been meaningless without information as to the subject-matter of it. To support the objection that the threat was conditional, and therefore inadmissible, Maclin v. State, 65 Tex. Cr. R. 384, 144 S. W. 951, is cited. The threat in that case was rejected as hot being shown to have been directed toward deceased. It was peculiarly worded, and som'e language in the opinion indicates that it should also have been rejected because conditional in its nature. Aside from the fact that it was not shown to have been used with reference to deceased, the other reason for holding it inadmissible is reflected in the statement by the writer of the opinion that:

“This threat is too uncertain in its character, and is too indefinite, we think, to be admissible under the facts of this case and the authorities.”

We do not regard the case as authority for excluding proof of conditional threats by one accused of murder, where they show animosity, ill will, and malice towards the party afterwards slain. Mr. Wharton states the rule very succinctly in section 908, p., 1702, vol. 2, Wharton’s Crim. Ev. as follows:

“The relevancy of the threats is not affected by the fact that they are impersonal or conditional, where the circumstances show that they were directed towards or included the deceased.”

Numerous cases from this court have followed the rule thus announced. See Russell v. State, 84 Tex. Cr. R. 245, 209 S. W. 671; Pace v. State, 69 Tex. Cr. R. 27, 153 S. W. 132; Brewer v. State, 68 Tex. Cr. R. 483, 153 S. W. 622; Owen v. State, 52 Tex. Cr. R. 65, 105 S. W. 513; Dowell v. State, 58 Tex. Cr. R. 482, 126 S. W. 871; Harrelson v. State, 132 Tex. Cr. R. 534, 132 S. W. 783.

Bills 3 and 4 relate to the same subject and may be considered together. In both of them complaint is made at the refusal of the court to withdraw certain testimony which had been introduced by the state. The killing occurred on the morning of September 20th. The state had proven without objection that the district court and the grand jury were in session at Mt. Yernon on September 19th, and had also proven by a son of deceased that he- and his father had gone to Mt. Vernon on that day and carried some cotton, leaving Mt. Vernon about 4:30 in the afternoon, and returned to their home. Bill No. 4 recites that the testimony of deceased’s son was admitted over objection of defendant. If this evidence was in fact objected to, the ground of objection is not shown in the bills now being considered, and we find no other bill complaining of the reception of such evidence. The bill certifies that no evidence was introduced showing that defendant did or did not know that the grand jury was in session, nor any showing that defendant knew deceased went to Mt. Vernon on the day before the killing, and that there was no evidence showing that deceased or any one else had made a complaint against defendant for playing cards. The bill further shows that deceased and defendant resided about 400 yards apart; that defendant’s residence was some 20 feet from the road which deceased traveled in going to and from Mt. Vernon. After the evidence was closed defendant made a motion reguesting the court to withdraw the evidence as'to the grand jury being-in session and deceased’s trip to Mt. Vernon. The remaining portions of the ;two bills contain the reasons urged for withdrawal of the evidence ; in other words, grounds of objection. It is not certified as a fact that defendant-did not know the grand jury was in session, or that he did not know deceased had gone to Mt. Vernon the day before the homicide. The evidence having been admitted in the first instance without objection, or, if objection was urged at the time of its reception, the record being silent as to the grounds then stated, seems to leave the bills without merit. See Harrelson v. State, 60 Tex. Cr. R. 534, 132 S. W. 783; Hunter v. State, 59 Tex. Cr. R. 439, 129 S. W. 125; and other authorities cited in paragraph 2, § 1930, Branch’s Ann. P. C.

The court charged on murder, manslaughter, anpf self-defense. Defendant filed written objections to the charge, specifically excepting because the court had omitted any instruction on defense of property. A number of special charges embracing this issue were reguested and refused. In determining whether the issue was in the case it is necessary to consider the evidence of defendant and his wife. He testified that he had picked and sold three bales of cotton, placing the rent in the bank at Mt. Vernon; that after he had sold two. bales deceased spoke to him about the rent and defendant told him he had left it in the bank and would write Mr. Horn about it, at that time getting from deceased Mr. Horn’s address; that after this conversation he sold another bale, also leaving the rent in the bank; that the evening before the killing he had brought a wagon load of seed cotton from the field and driven it under the shed for the night; that when deceased came the next morning defendant had just about finished hitching his team to the wagon; that when deceased came up he said, “Now, Dick, I will haul that cotton, I guess.” From this point we quote defendant’s testimony:

“Mr. - Crone asked me if I had heard from Mr. Horn, and I told him I hadn’t; that I had written him a second letter, and why he hadn’t answered I did not know. I then went around the wagon- and hooked my other trace and drove out from under the shed. * * * At that time Mr. Crone was between the horses and the lot gate. * * * When I drove from under the shed I stopped, because he cursed me, and walked to the gate. It wasn’t open, and I seen I wasn’t going to get through.- He came on up and said, ‘You know Mr. Horn has been beat out of his rent, Gilliam, and I am going to see that he does not this year, and I am going to haul that cotton.’ I said, T don’t know anything about the rent; I put the rent in the bank and the cotton is mine and I am going - to haul it.’ * * * When we had this conversation he commenced to raise the cotton scales, and I said, ‘Don’t hit me with them scales,’ and backs out. That was after he said he was going to haul that cotton. When I got back of the wagon he stopped. When he raised the scales I had the lines and dropped them to get out of the way. He was then close enough to strike me. He did not say anything else right then and I turned behind the wagon * * * and started towards the house. *' * * He came the- other way and says, ‘I will stop you.’ I was going north in the direction of the gate. When we got somewhere about the gate I stopped and he went on to the gate. Just before he got to the gate within 8 or 10 feet probably he says, ‘You G-d- s- of a b — -, I will stop you.’ * * * He started towards me and I told him to stop. He had the scales raised in a striking position coming towards me, and as he came I stepped back two or three steps and he continued to come, and he got within four or five feet of me. When I told him to stop he did not, and I then shot. X was afraid he was going- to kill me with those scales.”

Mrs. Gilliam testified that as she went to the house from the cow lot she met deceased in the gate; that after she had gotten into the house the first thing that attracted her attention was some loud cursing. We quote her testimony in this connection:

“I heard the words, ‘G-d-you, get on that wagon and come on and I will stop you,’ * * * I ran to the east door, and when I got there I saw Dick and Mr. Orone. Mr. Crone was standing in the gate turned towards Dick. * * * He was standing and raised the scales which he had in his hands and started towards Dick. He had them drawn over his shoulder. * * * I heard Mr. Orone say, ‘You G- d- measley s- of a b-, I will stop you now.’ * * * Dick said, ‘Stop Mr. Crone’; but he did not stop. When Dick told him to stop he [Dick] stepped back and Mr. Crone stepped forward. * “ * Just -as Mr. Crone started forward and Dick stepped back I heard a gun fire.”

Other evidence makes it clear that the “gate” referred to by Mrs. Gilliam was one leading into the road and used in going from the house to the lots and inclosure where the wagon of seed cotton was under the shed, and the same gate through which defendant would drive the wagon in going to the gin. When deceased was in this gate he was at a point where he would intercept defendant in going to the house on foot, or in driving the wagon into the road. It is not for us to say whether the evidence of defendant and his wife is true, but only to determine if it raises the issue of defense of property. When deceased first came up he told defendant that he (deceased) would haul the cotton; he then inquired if defendant had heard from Horn. The reply expected from Horn was about the rent from the .cotton. Deceased then told defendant Horn had been “beat out” of his rent last year, and that he (deceased) was going to see to it that it did not happen again this year, pointedly referring- again to the cotton, for immediately following said statement he repeated that he would haul it. Defendant was forced to drop the lines and abandon his journey to the gin when deceased threatened to strike him with the scales. When first told to stop he was moving towards the gate with the wagon. The gate was partially closed. It was necessary to open it further before the wagon could pass. As defendant went towards the gate on foot he was again told to stop. Mrs. Gilliam claims to have heard deceased tell defendant with an oath to “get on that wagon and come on and I will stop you.” While the evidence raises the issue of self-defense, we cannot escape the conclusion that it also raises the issue of defense of property.

It appears 'to be well settled that, when the evidence has a tendency to bring the case under the provisions of both articles 1105 and 1107 of the Penal Code, it -is incumbent On the court to give in charge the law governing the defenses under both articles. Williams v. State, 59 Tex. Cr. R. 624, 129 S. W. 838, and other cases referred to in that opinion. Defendant was in possession of the cotton, and was within his rights in hauling it to the gin in preparation for market. Deceased had no right to prevent this. If he used force in the effort to do so, defendant had the right to use whatever force was reasonably necessary to repel an aggression upon his property in order to prevent it from being taken from him, even to the extent of killing after every other - effort in his power had been made to repel the aggression. Article 1110, subd. 4. Walker v. State, 70 Tex. Cr. R. 84, 156 S. W. 206; Hopkins v. State (Tex. Cr. App.) 53 S. W. 619; Howell v. State (Tex. Cr. App.) 57 S. W. 835; Sims v. State, 38 Tex. Cr. R. 637, 44 S. W. 526.

Por the. reasons heretofore given, the judgment must be reversed and the cause remanded. 
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