166 S.W.2d 699 | Tex. Crim. App. | 1942
The offense is murder. The punishment assessed is confinement in the State penitentiary for a period of seven years.
The State’s theory was that the killing was a deliberate murder with malice aforethought, while that of the appellant was self-defense.
Appellant testified that about three months preceding the night of the fatal shooting the deceased came to his home one night and asked him about his relations with a little girl. Appellant denied any knowledge thereof, whereupon deceased said that some day he was going to kill him if he did not leave the little girl alone; that about three weeks prior to the night of the homicide, Jose Arispe, a brother of the deceased, came to his house at night, woke him up and told him that the deceased was going to kill him (appellant) ; that on the night of the killing when the deceased and his companions came from the booth, he turned half way around, looked toward him (appellant) and remarked, “Howdy ehingon,” and was trying to get something out of his pocket, whereupon he (appellant) drew his pistol and fired because he knew that the deceased was a bad man and he was afraid that the deceased was going to kill him.
It is obvious that an issue of fact was raised as to whether or not the ■ killing was with malice aforethought or in self-defense, and this issue was determined by the jury adversely to the appellant.
Bill of Exception No. 1 reflects the following occurrence: While appellant’s counsel was cross-examining the State’s wit
Bill of Exception No. 2 shows that while appellant was testifying in his own behalf his counsel sought to elicit from him the fact that Felix Arispe, a brother of the deceased, was present when the deceased was shot; that from his knowledge of the character and reputation of Felix Arispe, he knew that Felix was mixed up in some trouble in Schleicher and Sutton Counties growing out of the murder of the Calcott family in September, 1940, and that he was under indictment charging him with aiding the murderer to escape and having assisted in hiding or suppressing evidence of the murder. To- which the State objected on the ground that said testimony was irrelevant and immaterial. There is no evidence from any source that Felix Arispe did or said anything at the time of the shooting or prior or subsequent thereto. The mere fact that he was present at the scene of the homicide and that he may have aided one to escape who had committed murder at another time and place, and the further fact that he may have suppressed evidence would not make such testimony relevant or pertinent in this case.
By Bill of Exception No. 3 appellant complains of the action of the trial court in declining to give his special requested instruction to the effect that if the jury believed that the deceased died as a result of his own neglect in failing to procure or obtain or continue proper treatment for himself and that such neglect or failure on his part caused his death, or if they had a reasonable doubt thereof, to acquit him.
Appellant complains of the court’s action in declining to give his special requested instruction to the effect that any person who has been threatened with death or serious bodily injury has a right to arm himself against an anticipated or threatened attack, and if the jury believed from the evidence that the deceased had threatened Ygnacio Gomez with death or serious bodily injury, then and in such event the defendant had a
Appellant also complains of the action of the trial court in overruling his amended motion for new trial based on certain alleged errors committed by the court during the trial in that he was deprived of the testimony of Andres Lara, a material witness in his behalf. There is nothing in the record which shows that appellant made any application for a continuance or for a postponement of the trial or that he announced ready subject to the appearance of said desired witness. It seems from the record that he knew what the absent witness would have testified to if present. However, he announced ready for trial with full knowledge of his absence. Under such circumstances the court was fully justified in overruling the motion for new trial.
Finding no reversible error in the record the judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.