*1 702 715, A.L.R. 1180
350, 165 190 S.W.2d Roberts, 114 Brackenridge v.
(1945) and 1001, 244, 418, are S.W. S.W.
Tex. May In v. controlling on the facts.
not clear and em
Brown the a new
phatic had executed that the testator
will, handwriting, and wholly in his own sign as young women to
also asked two of this will
witnesses. shown, but from all the evidence warranted
conclusion was provision for changed will make
¡his In the second case wife and children. be whether controlling issue was said to Brackenridge executed a will
or not Mr. pres
subsequent will with the to the 1913 and to re
ent intention that it be his will
voke all wills. former
For I would reasons judgment
verse of the Court of Civil Appeals judgment and affirm the trialcourt probate. admitting the will to
SMITH, HAMILTON and STEAK-
ÍLEY, TJ., join this dissent. EDMONSON, Appellant,
Earnest Manuel STATE
Court of Criminal
Nov. 1964.
Rehearing Denied Dec. *2 Gloria, sister,
thy, her duplex; sister of side of a Gloria, side Dorothy lived in the other Shortly duplex the deceased. with Ruthie came after the deceased and talking midnight, heard them around Doro- loudly arguing. At this time visit, knocked on the thy next door to went called, deceased answered door and and the coming.” “I am the deceased While door, appellant came coming to the side, Dorothy told to move other aside, open, breaking kicked the front door deceased, knife with a latch. When appellant approached, asked in his hand as open, by kicking what he meant said, anymore, appellant “Don’t hit her de- Bug.” (Bug was the nickname of ceased). appellant Then the deceased told house, get appellant out of his said, anymore, Bug.” again her “Don’t hit appellant as and the deceased kicked at the house. he turned and left the later, appellant About ten minutes shotgun turned hand and with a one pushed other and shells into deceased’s grabbed saying, “Don’t do * * * that. in this in this man’s You house,” appellant pushed Gloria and At this told her not to tell deceased, standing, walk- time the who was bed, got pistol went to the ed to the began loading gun. When dresser and door, bed- between the room, jumped living room and the aside, in front of and he her Beaumont, Sanders, appel- for Malcolm and then the shot the deceased lant. down with the The deceased sat Atty., Lindsey, Dist. Kenneth L. C.W. chair, shot the one Beaumont, Parker, Atty., Asst. Dist. door, appellant, still in the front Austin, Douglas, Atty., Leon B. as if “broken down” he were the State. trying something.” At this to “unload it or chair, shot time the deceased arose from the BELCHER, Commissioner. fell, again, appellant turned and the around walked out the door. for murder without The conviction is punishment, years. malice; five shows that the shot from large iliac and' gun artery severed the of the state reveals causing- groin thereby visiting niece, Doro- vein in deceased’s resulted in deceased’s blood which on the use of a deadly weapon reveals no error. *3 be- testifying in his own The It is contended that the trial court half, asleep at that while failing charge erred in to on the defense up saying him “Get duplex, awakened she of another. In the absence of such an ob stop Bugeye (deceased) try help me to jection charge at the as sub Bouncey (Ruthie)”. At before he kills jury, mitted the to no error is helped Dorothy break in the time he Appellant contends that the trial court hit her the deceased not to and he told in charging jury upon erred the the law of anymore. Then the deceased (Ruthie) provoking difficulty. the said “I will something pocket his him, you”, deceased hit kill both undisputed is in that kicked as he turned the deceased tentionally returned to deceased’s ap- home. As he house and went left the ment, and without invitation of the de pellant he heard arrived apartment ceased his get his screaming, and decided to carrying shotgun, while a loaded and when stop him from deceased and to scare the by advised that entering he was an not intend but said he did whipping other man’s house he told her not to tell Further, that testified him. to shoot These in facts addition to the returning house with to deceased’s after prior difficulty the and the other evidence as (cid:127)shotgun, he had to shoot the by summary shown the herein of the evi himat in defense as the deceased shot self dence were sufficient to authorize the court twice, hitting him in the awith charge provoking on the law of the diffi in they Two witnesses testified (cid:127)once. culty. State, Tew v. Tex.Cr.App., 379 night the neighborhood S.W.2d 893. opinion they shooting in their heard rifle shots before heard a that the trial court It is insisted upon rights of the submitting charge complains of the In his brief ap- protect home from the deceased to it failed charge grounds that (cid:127)court’s on the rights of pellant, unduly restricted necessary proof place burden of self defense. on the presumption charging "the state deceased; weapon by deadly use of a upon charge In connection with a imperative to both presumption -that such is defense, court further the law of self juries courts; court failed that the right that, “Every charged person has the on the provisions of the statute include the attack protect from unlawful weapon; deadly -presumption on the use of a may be the use of whatever force as rea using words and the court also erred sonably required in order so to do. If a you for the reason find the facts to be” "“as person placed wrong has himself relieving the state it had the effect wrongdoer the home another then such proof in its burden of this instruction. is, law, yield and re under the bound to rights treat of the lawful of the favor charge reveals that court’s present therein at owner of the home in adequately it in substance wrong.” time of the commission of the (cid:127)cludes the of Art. Ann.P.C., the use of properly applying on the the law to deadly weapon. Further, you -a an examination charged: facts the court also “If do objections light beyond (cid:127)of the not find from the evidence a rea- place necessary it failed burden wrong- sonable doubt that defendant was fully (cid:127)of and that it had the in the home of deceased on the occa- relieving question, you burden of effect of the state of its sion in or if a reasona- body. From an examination of thereof, rights of defendant show hie doubt light all the photographs in the evi- hereby and he shall not be lessened shall dence, error is shown. self-defense no reversible rights full to his be entitled herein.” outlined as is to sustain sufficient facts, complaint made Under the conviction. reveal instruction does not judgment is affirmed. Sec. error. 29 Tex.Jur.2nd Opinion approved the Court trial *4 contended that is also jury refusing court MORRISON, Judge (dissenting). appellant’s right himself and seek arm on explanation from the deceased as an myself bring agree I cannot to an conduct. affirmance of this conviction. literally exhibits and 10 show acres of appears There been written no Prior their blood. introduction Officer time objection charge at the to the court’s already Lawhon had testified that saw given distinctly specifying fail it was body of deceased the funeral ap ure a charge of the court to submit on mortician saw wound and observed the pellant’s right an to arm himself seek sample try to blood from the extract a of (cid:127)explanation from deceased. Such an ob corpse fail, expressed opin- and had statutory. jection is Art. confirmed the morti- ion which was later special requested instruc No Ann.C.C.P. gunshot cian that cause death was a matter Art. 659 tion pictures of blood. The therefore (cid:127)C.C.P. This contention reflects no error. helped disputed solve no issue and were inflammatory. highly urged Error is in the admission photographs showing blood the floor respectfully I dissent. steps and one blood ment where the deceased killed. objection ground was on that there was cause
no issue as to of death and that inflammatory
photographs preju
dicial. objection to an qualifications officer, experienced had described the who YARBROUGH, Appellant, Ernest wound, express opinion death by gunshot wound and loss of was caused The STATE blood, photographs state offered the purpose cause showing stip- At the he would time Court Criminal a ulate that death was caused as a result of Dec. it with- gunshot stated was wound later Afterwards, mortician, drawn. called suffered testified that deceased expressed the large groin, wound
opinion all of blood that he would lose
in a time. short shot photographs do