Isaacs v. State, 25 Tex. 174

Isaacs v. State

25 Tex. 174 | Tex. | 1860

Bell, J.

The third specification in the assignment of errors is, that the charge of the court is contrary to the law, but in the briefs furnished by counsel, no error in the instructions given by the court to the jury is pointed out. We are of opinion that the charge of the court is free from error, and contains a very full exposition of the law of the case! It is clearly shown by the-testimony that the wound which caused the death of Dr. Spillar, was inflicted by the appellant with a dirlc or dagger. Article 610 of the Penal Code provides that “ if any person be killed with a bowie knife or dagger, under circumstances which would otherwise render the homicide a case of manslaughter, the killing shall nevertheless be deemed murder, and punished accordingly.”

It follows that the judgment of the court below against the appellant must be affirmed, unless it can be established that the evidence shows a case of excusable or justifiable homicide. If the killing took place under circumstances which would otherwise render if a case of manslaughter, then it is elevated to the degree of murder by the provision of the code, because a dagger was the weapon used by the slayer. We are of opinion that the evidence shows very clearly that the accused was under no necessity to take the life of Dr. Spillar at the moment when he struck the fatal blow. It is true that the deceased struck the first blow, being excited to do so by the profane language and the angry and insulting gesticulations of the accused. Dr. Spillar may not have been legally justifiable in striking the blow, but the accused was not justifiable in making the assault by Spillar the occasion of taking his life. It is not shown that Dr. Spillar offered to follow up his first blow by a further assault; but it is shown that the accused retreated twenty or thirty feet after Dr. Spillar struck the blow, drew his dagger and returned to the conflict. His life was' not in danger. He used greater force than he was justifiable in using, and the jury could not properly have declared by their verdict that the homicide was in the necessary defence of his per*179son from an unlawful attack, which produced reasonable expectation or fear of death, or of some serious bodily injury. The accused provoked the blow which was dealt by Spillar, who is shown to have been a rail'd and peaceful man, and it would be subversive of every principle of the criminal law to hold that a man was justifiable in taking the life of another who, under much provocation, had struck a single blow without following it up in such a manner as to endanger life. As has been before said, if the killing was not justifiable, it was at least manslaughter, and if manslaughter from its other circumstances, then it became murder because of the use of the dagger.

The judgment of the court below is affirmed. -

Judgment affirmed.