202 S.W.2d 236 | Tex. Crim. App. | 1947
Appellant was assessed a penalty of twenty-five years upon a conviction for the murder of Nathaniel Austin.
The appellant, a negro, lived in a crowded colored section in the City of Houston on a very narrow street, and the deceased was his next-door neighbor, the houses being some ten or fifteen feet apart. Ernest Austin, a brother of deceased, lived immediately across the street in front of appellant. In the early afternoon a number of negroes gathered at the home of appellant and engaged in shooting dice. It is conceded that some gin was consumed by appellant, and all of the facts would indicate a mutual association in the entertainment which was finally broken by one negro accusing somebody of getting his ten-dollar bill. Appellant stood the negroes up and searched them personally until someone handed him the bill, saying that it had been passed to him by another, probably as a joke. The feeling, however, became stirred all the more until the crowd was in° an uproar. Some of the witnesses did not remember this part of the day’s activities, but sufficient state witnesses so testified that there was no conflict in the testimony on this point. Thereafter, the things which took place are much in conflict. Many of the negroes, present and near, became state witnesses. They were specific in details and remarkably harmonious in their conclusions. It is sufficient to say that they out-testified appellant to the entire satisfaction of the jury, who assessed the heavy penalty.
Only one question is presented in the appeal which complains of the failure of the trial court, upon proper request, to instruct the jury on the law of self-defense. This necessitates a consideration of the testimony of appellant, who was the sole witness in his behalf, other than character witnesses. He gave the evidence upon which reliance was had for his right to a charge on self-defense. According to his testimony, when the fuss arose in his home and the parties began cursing and abusing each other, he ordered them out of his house. They left and repaired to the home of the deceased’s brother, across the street, leaving appellant alone in his home. He reflected that one of the parties he had ordered out of his house was a brother, Mason, regarding whom he said, “I thought I ought to go over
As above stated, the prosecuting witnesses, with a solid front, contradicted much of the foregoing evidence and made appellant the aggressor in every move. If their testimony alone was before the court there would be no issue of self-defense raised. We think, however, it was not within the power of the court to measure this evidence and say that it did not raise an issue of self-defense.
The Criminal District Attorney of Harris County and his very able assistants have filed a brief in which the contention is made that the evidence shows an offensive act on the part of appellant throughout so that he can not avail himself of the
The situation, however, can not be surveyed by the court from the viewpoint of the state’s evidence alone. He must consider the evidence of appellant and that produced in his behalf in determining the issue which such evidence has" raised, and it matters not how much this is in conflict with the state’s evidence so long as it is not surrounded by circumstances which would make his claim impossible, or which would defeat the right under the recognized rules of procedure. The case before us must be so considered. When this is done the evidence clearly raised the issue of self-defense and the trial court should have responded to the request for such a charge.
For the error pointed out, the judgment of the trial court is reversed and the cause is remanded.