29 S.W. 1091 | Tex. Crim. App. | 1895
Lead Opinion
This is a conviction for manslaughter. The defendant testified. The proper predicate being laid, Sullivan was introduced to prove contradictory statements made as to material matter sworn to by him. The state had the right to question him regarding this matter, and, unless he admitted unequivocally that he had made the statement to the impeaching witness, the State had the right to so prove by such witness that he had. The court submitted to the jury the rule of law applicable to mutual combat. The charge upon this subject was required by the evidence; and, if it was not, the appellant being convicted of manslaughter, there was no possible injury to him in giving this charge. There is an exception reserved to the charge regarding the doctrine of imperfect self-defense. This charge was called for by the evidence; and, if it was not, no possible harm could have been done appellant, because there was no self-defense in this case. The court instructed the jury: "If the deceased attacked the defendant with a pistol while they were walking from Moro's house, and after such attack retreated and quitted the combat as far as he could, and the defendant, then under the influence of sudden passion, produced by the assault, *36 fired upon and killed the deceased, he would be guilty of manslaughter." An exception was reserved to this excerpt from the court's charge. Be the character of the attack of whatever nature it may have been, whether of a deadly character or less, the proposition of law laid down in the charge is correct, and was called for by some evidence in the case, and in giving this charge to the jury the only defense to murder presented by any evidence was submitted to the jury. We are writing upon this case — the case as presented to us by this record — and not of all cases which may arise. The evidence is amply sufficient to support this conviction for manslaughter. When the mortal wound was inflicted the appellant was in no possible danger of any character of violence. He the (deceased) was at that time without arms, which was known by appellant, and nothing less than manslaughter was in the case. Judgment affirmed.
Affirmed.
HENDERSON, J., absent.
Addendum
On motion for rehearing and to transfer the cause to Austin for argument. The judgment herein was affirmed at a former day of this term. Now appellant files a motion for a rehearing, and another motion to transfer the motion for rehearing to the Austin term of this court, because there is not sufficient time left at this term to hear oral argument on said motion for rehearing. Rule No. 14 of the Supreme Court provides that argument on motions for rehearing shall be confined to brief explanation of the grounds in the motion, so as to make them intelligible to the court, with a reference to the statutes and decisions thereto, unless further argument is requested by the court. Upon submitting a motion, counsel have the right to make this brief explanation, etc., but no right to enter upon an argument upon the motion unless invited by the court. We have deemed it proper to make these observations in order to call the attention of the profession to the rule. We will in the future strictly enforce this rule. The motion to transfer the cause to Austin is refused. The motion for rehearing, having no merit in it, is also overruled.
Motion overruled.