# Reed v. State

> Court of Criminal Appeals of Texas · June 10, 1914 · 74 Tex. Crim. 242

URL: https://www.frixlaw.com/law-library/cases/3955430

## Case

- **Full name:** John Reed v. the State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 10, 1914
- **Citations:** 74 Tex. Crim. 242; 168 S.W. 541; 1914 Tex. Crim. App. LEXIS 318
- **Precedential status:** Published
- **Opinion:** Dissent by Davidson
- **Judges:** Davidson, Pbehdebgast
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3955430

## Opinion text

DAVIDSON, Judge
(dissenting).—It is unnecessary to make any further statement of the case than that made by Judge Prendergast in the majority opinion. The opinion quotes fully the bill of exceptions reserved to the verbal charge or instruction given the jury just before they were empaneled, seven of whom tried the case. This was a very lengthy verbal charge, and the bill of exceptions recites that this charge was given the regular panel of the jury for the week at the time they were sworn and their qualifications as jurors tested. This jury was to try appellant’s case. The bill, after reciting fully the charge so given, closes with this statement: “The foregoing instructions were delivered to the said seven jurors prior to the time that they were empaneled, and the exceptions hereinbefore urged were urged by counsel for the defendant at the time they were given to the jury.” While not positively so stated, yet it is apparent from the record and the bill that appellant himself was not present at the time this charge was given to the jury. My brethren say this was not a charge to the jury. If it was not, then I fail to understand what to call it. There are quite a number of objections urged to this charge which are also stated in the majority opinion, which I deem unnecessary to restate. A similar charge and under similar circumstances was condemned in the 'cases of Chapman v. State, 42 Texas Crim. Rep., 135 ; Attaway v. State, 41 Texas Crim. Rep., 395 ; Jones v. State, 51 S. W. Rep., 949 ; Murphy v. State, 57 S. W. Rep., 967 . The majority opinion refers to these eases as being cited by appellant in support of his contention, that the trial court was in
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error in verbally instructing the jury as it did, but they hold that these cases are not in point and not applicable. Just why they are not in point and why they are not applicable is not stated in the opinion, and I confess that I do not understand why they are not in point or why they are not applicable. While the language in this case is not identical, yet this charge compared with those charges is in substance the same. Our statute provides that in all felony cases the court shall give his charge in writing, and distinctly set forth the law of the case. It has always been held that the court can not give a verbal charge in a felony case, because the statute requires it shall be in writing. Ho charge can be given until after the evidence has been adduced. Another statute expressly provides that, “It is beyond the province of a judge sitting in criminal causes to discuss the facts or use any argument in his charge calculated to arouse the sympathy or excite the passions of a jury. It is his duty to state plainly the law of the case.” The court in this verbal charge
did not state the law of this case,
but some features of it are positively in contradiction of all the decisions in Texas bearing upon the question of charging on the weight of the evidence. On this issue of general good character Mr. Branch, in his excellent work on Criminal Law, tersely and correctly states the rule as follows: “Defendant may prove his general good character when guilty knowledge or criminal intention is of the essence of the offense,” section 332, citing Poyner v. State, 48 S. W. Rep., 516 ; House v. State, 42 Texas Crim. Rep., 125 ; Jones v. State, 10 Texas Crim. App., 552; Coffey v. State, 1 Texas Crim. App., 548; Lincecum v. State, 29 Texas Crim. App., 328; Lann v. State, 25 Texas Crim. App., 497; Lockhart v. State, 3 Texas Crim. App., 567. It was also held in Lee v. State, 2 Texas Crim. App., 338, that it was error to charge that evidence as to the defendant’s character is immaterial. It was further held that evidence of good character is admissible as relevant to the credibility of the evidence against the accused, and like any other fact is to be considered by the jury in determining whether or not his guilt has been established beyond a reasonable doubt. Its competency is not restricted to doubtful cases. This is the general rule and applies to all cases where that issue is involved. In this particular case the intent of the defendant was one of the most crucial, critical points raised on the trial. The evidence upon which the jury based their verdict for murder in the second degree is exceedingly doubtful, if in fact it is sufficient. The opinion of the writer is that the evidence did not show a higher degree of guilt from the standpoint of the State than imperfect self-defense or manslaughter. Appellant put his reputation in issue, and fully proved his high character. Again, he filed under the Act of the Thirty-third Legislature, page 8, his plea for suspension of the sentence in case of conviction for manslaughter. Section 2 of that Act provides that the court shall permit testimony and submit the question 'as to the general reputation of the defendant to enable the jury to determine whether to recommend the suspension of sentence, and as to whether the defendant was ever before convicted of a felony. Such
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testimony shall be heard and such question submitted upon the request in writing of the defendant. The defendant placed his reputation in issue, and fully sustained it by evidence, yet the court in his verbal charge instructed the jury that they should not regard “the standing of the parties”; they should forget who they are and ignore “their standing,” and “their names,” etc., and in his general charge to the jury did not instruct them with reference to his reputation. His reputation then necessarily was more vital in this case than it would have been had appellant not filed his plea for suspension of sentence. Bearing upon his intent in the homicide, his reputation was of critical moment, and this instruction of the court to the jury may have induced them to disregard his reputation or character and find the issue against him on the question of manslaughter and suspension of sentence. A jury should never be told that high standing, good reputation or upright character should not be regarded by them in making up 'a verdict. They gave him murder in the second degree with eight years confinement in the penitentiary. Having verbally instructed seven of the jurors who tried him that they should not regard the high standing of parties, it would be but natural for the jury to conclude that such evidence should not enter into their verdict on the plea of suspended sentence. Ho one would question the illegality of this charge or the error if the court had instructed the jury in his written charge that they should not regard “the high standing” of the defendant in making up their verdict. This conviction would not have lasted in this court longer than it would have taken a short opinion to reverse had such charge been given in the written instructions by the court, yet seven of the jurors went into the trial of the defendant under this verbal charge of the court not to consider his “high standing.” The evidence of his “high standing,” his good character, was one of the highest importance, and proved one of the grounds for suspending his sentence.
There are other phases of this verbal charge that are subject to serious criticism that I do not care to discuss in the condition of the record. In the Chapman case, supra, a similar charge,, or one of similar import was given by the court, but it related more to the proposition of apparent danger and reasonable doubt, and this court reversed because of that instruction given the jury before they were empaneled. The Chapman case has been followed in other cases, and it itself followed the case of Jones v. State, supra, and Attaway v. State, supra. I do hot know that I could add anything here to what was said in that case. If the court had instructed the jury in writing that they should not consider the “high standing” and good reputation and character of the defendant from any viewpoint this judgment would have been reversed, and that would be emphasized by the fact that he had filed a plea for suspended sentence and proved beyond any question his high character, and yet the court instructs the jury verbally they must “not regard the high standing” of the defendant. I deem it unnecessary to go further into a discussion of this phase of the case.
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There is another question urged by appellant that it occurs to me shows merit. The court charged upon provoking a difficulty. I am of the opinion that the question was not in the case. There was a phase of the testimony calling for a charge on mutual combat, but the court uses the same facts which brought about the reason for charging on mutual combat, and applied it also on the question of provoking a difficulty. ‘Of course, if appellant provoked a difficulty, it would he a limitation upon his right of self-defense, but if he did not, then the error would be grossly wrong. He relied upon self-defense. The court charged the theory of self-defense, and under our statute it occurs to me that the provoking.of the difficulty was not in'the case. When appellant asked the deceased if he had killed his dog, the deceased replied to him, “What are you going to do about it?” Appellant, in substance, said that it takes a son-of-a-bitch to kill his dog, whereupon the deceased said he would not take that and invited appellant from his horse. Appellant dismounted, whereupon deceased struck him on the head and on his hand with the “whipstock” with which he was driving, that is, the staff of his whip, inflicting pain and also a knot as I recall the testimony. Insulting language will not justify an assault. The assault here was made by the deceased. Appellant had accepted the invitation to get down from his horse. Appellant may have understood there might be a fist fight as the parties were not armed so as to indicate any other character of fight was contemplated. Appellant had nothing but his pocket knife, and the deceased was driving his team with a whip, the staff of which was heavy enough to inflict pain. When appellant alighted deceased struck him over the head and on the hand and a fight began. I am inclined to believe that the court should not have charged on provoking a difficulty. It is sometimes a little difficult to tell just what may provoke a difficulty. While the provocation might not justify an assault, yet sometimes insulting language will bring about or produce the occasion; but appellant only accepted the invitation of the deceased to alight from his horse. What would have become of the matter had deceased not struck him on the head of course is but a conjecture. Appellant had not done anything to this time except get off his horse. Deceased made the assault and began this difficulty. So from any viewpoint I am of the opinion the charge on provoking a difficulty should not have been given.
For the reasons above given I respectfully enter my dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3955430. Public record. Not legal advice.