No. 3018. | Tex. Crim. App. | Nov 2, 1904
Appellant was convicted of murder in the second degree, and his punishment assessed at twenty years confinement in the penitentiary, hence this appeal.
Appellant excepted to the charge of the court in the motion for new trial, among other things, because the same failed to submit to the jury a charge on the doctrine of retreat. A charge on this subject, like a charge on any other defensive matter, is only required to be given when the testimony pertinently raises that phase of case. While the court gave a charge on self-defense, yet an examination of this record, would hardly require the court to have given such a charge. However, appellant had the benefit of this. But was the court in this connection required to instruct the jury that appellant was not bound to retreat before exercising his right of self-defense. True, appellant proved threats against him by deceased which were communicated to him. Where a killing is shown, threats alone do not constitute self-defense; there must be some overt act done to justify the killing. The record discloses that appellant had killed deceased's dog a few days before the homicide, and that deceased, when informed by appellant's brother that appellant had killed the dog, said he would kill appellant because of that. At the time of the homicide, all the witnesses appear to agree that deceased came to the lot where appellant was, evidently to milk a cow. Seeing appellant there, he asked him if he killed his dog. To which defendant replied that he did; that he killed him because the dog had broke into his tent and knocked off the lantern. Defendant's witnesses say that at this juncture deceased said it was a damn lie; that his dog did not go into his tent. State's witnesses show that deceased at this time made no hostile act or demonstration toward appellant, but that appellant pulled his pistol; and deceased on some account fell down — one witness says he fell down, he thought to dodge the shot; at any rate all of the witnesses agree that he fell down. State's witnesses show he had no weapon in his hand. Defendant and his brother testified that when he fell he had a knife in his hand, but that it was closed. Witnesses all agree that at this time, after deceased had fallen, appellant shot him in the left side, the ball evidently penetrating deceased's heart, and he died instantly. Of course, if the testimony of the defendant's own witnesses suggest that a charge on the doctrine of retreat should be given, a failure of the court to give such a charge would be error. Does their evidence require such a charge? They say that deceased evidently advanced a step or two toward appellant, but stumbled on something and fell down. Both witnesses agree that at the time deceased was shot he lay prone on the ground with a closed knife in his hand. Appellant says in his evidence he shot him because he was afraid he would jump on him, and cut him; that he was trying *220
to get up and come at him. It occurs to us that this evidence does not even invoke the right of self-defense. Deceased had fallen on the ground, but had not gotten up; he was impotent to harm appellant, who in the meantime had drawn and presented his pistol. Deceased was absolutely in his power, and before he could possibly harm or injure him it was necessary for him to get up on his feet and open his knife, and then advance to appellant. But even if self-defense is in the case, we fail to see how the doctrine of retreat was involved. Hunt v. State,
The charge on manslaughter is criticised. We have examined the charge, and in our opinion it is an admirable presentation of every phase of the case which appellant could claim on that subject. The court gave a charge on the appearance of danger. Even if self-defense was involved in the case, defendant's charge on that question was not necessary. We have examined the evidence in this case, and in our opinion it amply supports the verdict of the jury. There being no error in the record, the judgment is affirmed.
Affirmed.