78 S.W. 940 | Tex. Crim. App. | 1904
Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of five years. This case was before us at the Tyler term, 1902, and was reversed for reasons set out in the opinion as found in 6 Texas Ct. Rep., 311. The facts are not materially different as reported in that case than those found in the record now before us. Error is assigned upon the charge of the court on the issue of self-defense: "The jury are further instructed * * * if they believe from the evidence that defendant *573 Sam Dodson shot Allen Brown, deceased, with a pistol and killed him, as alleged in the indictment; but further believe that at the time of doing so, if he did, that said Allen Brown was a county convict, and had been placed in the custody and under the control of defendant by the proper authorities of Ellis County to perform labor upon the public road, and that he was a man who was superior in strength to defendant; and if they further believe from the evidence that defendant attempted to chastise said Allen Brown with a strap of leather for violating a rule established by the Commissioners Court of said Ellis County for the government of county convicts; and if they should further believe from the evidence that he, the said Allen Brown, assaulted defendant with his hands and attempted to take his pistol away from him, and struck defendant with his fist, or with a rock, or some other hard substance; and if the jury further believe and find from the evidence that defendant believed, and had the right reasonably to believe, viewed from defendant's standpoint at the time, and viewed in the light of all the surrounding circumstances, that deceased was then about to take his life, or inflict upon him some serious bodily injury, and so believing, if he did, he shot deceased with a pistol, and killed him, then it would be the duty of the jury to acquit defendant upon the ground of self-defense." An exception was reserved to this charge; and a special charge requested, which was refused, as follows: "If you believe from the evidence that defendant, in the reasonable exercise of his right to inflict chastisement, undertook to chastise Allen Brown with a strap, and that while in the act of doing so, Allen Brown grabbed defendant and assaulted him, and you further believe from the evidence that by reason of the acts, strength and conduct of Allen Brown, if any, defendant was put in danger of loss of life or serious bodily harm; or if you believe that it so appeared to defendant at the time, viewed from defendant's standpoint, under all the surrounding circumstances, and that so believing he shot and killed Allen Brown, then you will find the defendant not guilty; if you have a reasonable doubt upon this question you will give the defendant the benefit of it and acquit him." Among other criticisms of this charge on self-defense is, that it coupled distinct matters and linked them together one upon the other; and required the jury to believe all of them in order to acquit; that should the jury disregard any one of these enumerated grounds, they would not be authorized under the court's charge to apply the law of self-defense. We believe this criticism is correct. The charge on self-defense should have been given substantially as requested by appellant, and it was not necessary under the circumstances that all these matters should be believed in order to justify an acquittal. The jury may have and doubtless did believe that before they could acquit, every one of the circumstances linked together by the court's charge should have taken place, and if they should not believe any one of the grounds specified they could not acquit.
The charge is further criticised, and we believe correctly, because the court stated the ground of reasonable belief entirely too strong *574 against accused, in informing the jury that in order to acquit defendant, they must not only believe from the evidence that defendant believed deceased was about to take his life or inflict upon him some serious bodily injury, but that defendant "had the right to reasonably believe" that he was about to take his life or inflict upon him serious bodily injury. If the facts or circumstances were such that if it reasonably appeared to defendant that he was about to lose his life or have serious injury inflicted upon him he had a right to act in self-defense. Upon another trial this phase of the law should be given as heretofore indicated by the decisions. It may be that the jurors understood from this manner of putting the reasonable appearances of danger that they were required to find that the facts did in fact exist. This charge is misleading to say the least of it; and this phase of the law should be given as we have always understood the law of reasonable appearances of danger. Richardson v. State, 7 Texas Crim. App., 493.
The charge of the court on manslaughter is also criticised; that is, the action of the court is complained of with reference to the omission of the charge as to the infliction of a wound by deceased upon appellant producing pain or bloodshed. The court's charge was general upon the question of manslaughter, and authorized the jury to take into consideration all the facts and circumstances. If the jury had only given two years, or the minimum punishment, the failure to give this phase of the law would have made no difference. Upon another trial, however, it would be safer and better for the court to charge the jury directly and pertinently with reference to pain or bloodshed that may have been caused by striking defendant with a rock. From the defendant's standpoint, perhaps this was the crucial fact bearing upon manslaughter. The statute specifies a wound of this sort as adequate cause.
Because of the error of the court in his charge upon self-defense, the judgment is reversed and the cause remanded.
Reversed and remanded.
