Alexander v. State, 25 Tex. Ct. App. 260

Alexander v. State

25 Tex. Ct. App. 260 | Tex. App. | 1888

Willson, Judge.

It was shown by the testimony of the defendant that, a few days prior to the homicide, deceased had threatened to kill him, and that such threat had been communi*266cated to him. It was also shown that the general reputation of the deceased was that of an overbearing, dangerous man, who would be likely to execute such a threat. It was further shown that, before the defendant shot or attempted to shoot the deceased, or inflict upon him any other violence, he was stricken, or stricken at, by the deceased, who was a powerful, athletic man, with a stick, and that the defendant began shooting at the deceased while the deceased was continuing the assault upon him with the stick.

Such being the evidence in behalf of the defendant, it was the imperative duty of the court to instruct the jury in the law applicable to such evidence; that is, in relation to such threat and the character of the deceased. It is well settled that if a person accused of culpable homicide has been threatened bf the, deceased with death or serious bodily injury, and such threat lias, prior to the homicide, been communicated to the defehdant, and at the time of the homicide the deceased by any act manifested an intention to execute such threat, the defendant would be authorized to act upon appearances, in resorting to any means to protect himself, and a killing under such circumstances would be justifiable homicide. Under the facts of this case this rule of the law should have been given to the jury as a part of the law of self defense.

We are further of opinion that the evidence as to threats, character of deceased, and the conduct of the deceased at the time of the homicide, should have been affirmatively submitted to the jury to be considered by them in determining whether or not “adequate cause” for the homicide existed. (Sims v. The State, 9 Texas Ct. App., 586; Williams v. The State, 22 Texas Ct. App., 497.) Defendant, at the time of the trial, promptly excepted to the charge of the court, because it omitted to instruct, the jury as above indicated. There is no instruction whatever in the charge given to the jury, in relation to the threats shown to have been made by the deceas'ed, etc. This phase, of the case, presented by the evidence, is not embraced in any manner in the charge.

There is also error, we think, in that portion of the charge which relates to the rules of the law applicable where the contest in which the homicide takes place is provoked by the defendant. It is not clear to our minds that the evidence authorized a charge upon this subject, but, conceding that it did, the whole law relating thereto should have been explained. The *267jury were instructed what the law was in case the evidence showed that the defendant provoked the contest with the deceased with the intent to kill him, but were not instructed as to what the law is when a difficulty is provoked with no intention to kill. As given, we think this- portion of the charge was erroneous, and calculated to prejudice the rights of the defendant. (White v. The State, 23 Texas Ct. App., 154; Green v. The State, 12 Texas Ct. App., 445.)

Opinion delivered March 17, 1888.

Other objections are urged to the charge which we deem it unnecessary to discuss or determine, as they will doubtless be eliminated on another trial in supplying the defects already noted, and because of which defects the judgment is reversed and the cause is remanded.

Reversed and remanded.