24 Tex. 454 | Tex. | 1859
The appellant was convicted of murder in the first degree. Upon the cross-examination of Mrs. Whittaker, a witness for the State, she stated that her husband had previously told her, that Hinton would kill him some day. This evidence was not objected to at the time it was given, nor was any motion made during the trial, to exclude it from the consideration of the jury. It might have been, so far as the record shows, a proper response to some question propounded by the counsel for the prisoner; therefore, it is not now any cause for reversal of the conviction in this court.
The defendant’s counsel asked the court to charge the jury, “ 1st. That if they believe from the evidence, that the deceased, P. C. Whittaker, followed defendant from the house, with intention of inflicting on him, said Hinton, any bodily harm, and used such language and gestures as might reasonably induce Hinton to suppose that Whittaker intended to assault him with
“2d. That if Hinton had reasonable cause to believe, from Whittaker’s language and manner, as he, Hinton, withdrew from the house, that Whittaker was following and advancing on him, intending to assault him, or do him some bodily harm in his retreat ; if Hinton fired with the intention of arresting Whittaker’s assault, the act could only be considered manslaughter, and not murder.
“ 3d. That if the jury believe from the testimony, that the prisoner, at the time of discharging his pistol, had reasonable grounds to believe that the deceased intended to inflict on him some serious bodily injury, and that deceased was in such a position that he might have carried his intention into effect, and acting under such apprehensions, the defendant gave the mortal wound, the act would be excusable, on the ground of self-defence.”
The first charge was given by the court, the second and third refused, which is assigned now, as error.
Without discussing the legal accuracy of the first charge, its being given, was certainly favorable to the prisoner. The second leaves out entirely, “sudden passion or impulse,” which is the necessary element of manslaughter, under our Code, and for that reason the court did not err in not giving it.
The objection to the third charge asked, is,^ that it is too loose and indefinite to convey to the jury a correct idea of the principle of self-defence, whether it be considered as an abstract proposition, or in reference to the facts in proof. The reasonable belief that Whittaker intended to inflict on him some serious bodily injury, must be founded in part upon some act of Whit-taker, (other than his merely being “ in such a position that he might have carried his intention into effect,”) showing that he,
This charge, had it been properly framed, would hardly have been applicable to the facts in proof. The defendant had put himself in the wrong, by his conduct towards the deceased and his wife, in their own house, and still further in the wrong, by refusing to go out of the house when requested by them. Whit-taker had a right to put him out of the house; he had a right to go along with him to the steps of the entrance, with his hand on his shoulder, and to tell him that he would make him go; and he had a right to take out his knife, for his defence, against a man armed with a pistol, who had shown his readiness to use his arms recklessly. ’The defendant, by his own conduct, had made all this necessary and proper on the part of Whittaker. What else was done which put him in a position to have the right to act on the offensive, by shooting the deceased the moment he, Hinton, left the steps, or while still on the gallery ? Was he' in danger of being cut with the knife ? There is no evidence that Hinton saw the knife, or acted with reference to any danger from the knife, when he did shoot. And there is not the slightest evidence, that Whittaker intended to assault Hinton with the knife. Eor the witness, who states that the knife was “ open or half
Thus the facts in proof show, that Whittaker, while doing a lawful act in a lawful manner, was killed by Hinton; and there is not a fact proved, which tends to establish the contrary, or that Hinton had reasonable ground to regard Whittaker’s acts in any other light, than as the exercise of a lawful right, done in a lawful manner.
Hinton having placed himself in the wrong, in refusing to go out of the house until he got ready, was bound to submit to the force, reasonably necessary to put him out. His right to resist the force of Whittaker, would not be called into existence at all, until Whittaker used, or was in the act of using, or being then manifestly about using, more force than was necessary to put him out. And then Hinton would have the right to resist, but only to the extent, and by the use of the means, necessary to repel such excessive force so used or impending.
Such are the rules applicable to the facts of the case, and are very different from the third charge asked and refused. There was no part of the original charge of the court prejudicial to the defendant. Murder, in its different degrees, as well as manslaughter, were properly explained.
We cannot say that the facts do not warrant the jury in the
Judgment affirmed.