Kelly v. State

27 Tex. Ct. App. 562 | Tex. App. | 1889

White, Presiding Judge.

It was excepted to the charge of the court to the jury that the instructions contained therein with regard to mutual combat were uncalled for by any evidence in the case, and were calculated to confuse and mislead the jury. “From the facts we think it clear that one or the other of the parties provoked or brought on the conflict, and that the one or the other not chargeable with this acted upon real or apparent necessity; and this excludes the idea of a mutual combat.” (Roseborough v. The State, 21 Texas Ct. App., 672.) There was no proposition to nor understanding between the parties that they were to fight. On the contrary, the proposition and understanding was that they were to wrestle for a sum of money, or upon a bet as to which could throw the other down. In preparing for this contest one or the other got mad, drew his knife and assaulted the other with it. The evidence is conflicting as to which party commenced the fight. During the fight both parties were cut with a knife. Under the facts of the case it was error to charge the law of mutual combat.

As to defendant’s right of self defense, the court instructed the jury in the language of article 572, of the Penal Code, which-requires a resort to all other means to prevent the threatened injury, before there is a resort to homicide, in order to-render it justifiable. This instruction was excepted to, and defendant’s counsel requested a special instruction in lieu thereof, as follows: “If you believe from the testimony in the case that there was an unlawful attack made upon defendant by deceased, and that the attack was of such a nature that the defendant had reasonable grounds to believe that he was in immediate and impending danger of being murdered or of receiving serious bodily injury by his assailant, he is justifiable in killing his assailant when (if?) at the time of the killing some act has been done by the deceased showing evidently an intention to commit one of such offenses; and the defendant in such case may act promptly, without resorting to other means before killing his assailant, because in such case the law presumes the party’s safety depends upon his prompt action in killing his assailant; and if you so believe from the evidence you will find the defendant not guilty;” which instruction the court refused to give. The instruction was correct as a proposition of law, was in our opinion applicable to the facts in evidence, and should have been given as part of the law of the case. (Penal Code, art. 570; Willson’s Crim. Stats., sec. 970.)

Opinion delivered May 8, 1889.

According to the testimony of defendant’s witnesses, he was first assaulted by deceased and was cut upon the neck with a knife before he drew and used his knife, and that deceased was still assaulting him when he, defendant, inflicted the cuts upon deceased with his knife. Under the facts it was error to charge the rule of law announced in article 572 of the Penal Code. (Ormand v. The State, 24 Texas Ct. App., 496.)

For errors in the charge of the court, the judgment is reversed and the cause remanded.

Reversed and remanded.