21 Tex. Ct. App. 241 | Tex. App. | 1886
This is a conviction for manslaughter. It appears from the record that the deceased, Emmet Johnston, and his brother, Eugene Johnston, W. E. Douglas, and the defendant, Lee, were in the store house of W. E. Douglas on the first day of January, 1884, sitting around the store. W. E. Douglas was
The above, in substance, is the testimony of Eugene Johnston, brother of the deceased. W. E. Douglas, cousin of deceased, gave a version, which is, in substance, the same as that given by Eugene Johnston up to the point when deceased picked up the ax handle. This witness says:
“Lee said: ‘Don’t call me a liar!’ Deceased then said: ‘You are a d—d liar!’ and picked up a poker stick, which was a piece of ax handle about twenty inches long. Just as defendant said, 6 don’t call me a liar,’ defendant ran his right hand into the breast pocket of his over coat, and rose from his chair and said, to deceased, 1 Walk out of here with me!’ Deceased said, ‘ all right,’ and started towards the door. The door was closed at the time; the deceased opened the left side of the door and stepped out. The deceased raised his stick and struck, or was in the act of striking defendant, when he, the defendant, fired the pistol. Lee shot under his left arm, which was on a level with his head. Lee was leaning back a little when he shot. Deceased lived about two-hours after the shot, and never spoke.”
On cross-examination, this witness stated that the stick used by deceased, “was a common sized ax handle, such as are
By other witnesses it is made certain that before defendant shot the deceased had struck him with the ax handle, leaving a bruise across his left arm as wide as two fingers, and that, when struck, defendant was wearing three shirts, a dress coat and an over coat. These facts leave no doubt but that the blow was quite a severe one. It is also shown by Dr. Simms that this blow was given before the shot, because deceased, from the nature of the wound, would have been instantly paralyzed. The blow was of such force as to shiver the ax handle.
Under these facts, the court below instructed the jury the law applicable to a case in which the parties mutually entered into the combat; charging them, in effect, that if the combat was mutual, and defendant intended, and did use a deadly weapon, and did take the life of deceased, that he could not invoke the right of self defense. This charge is based upon the theory that it was the intention of the defendant to engage in a combat with the deceased with a deadly weapon, and hence the right of self defense could not be invoked even to save his own life, etc. This theory is presented by the evidence, and this principle of law was properly submitted to the jury.
But are the facts so conclusive in support of this theory as to preclude all other inferences? The deceased, his brother, and Douglas were in the house. Douglas was a cousin of the •deceased, and it is evident that the deceased was the aggressor. He passed the first insult, and when requested not to call the defendant a liar, he not only repeated that defendant was a liar, but stated thad he was a d—d liar, at the same time picking up the ax handle. Douglas states in his testimony that the defendant ran his hand in his breast pocket and requested him to go out with him; that the deceased said, “allright” and led the way out of the house, the defendant following.
How up to this point, do the facts show beyond all question that it was the intention of the defendant to engage in a fight or combat with the deceased? May he not have believed that it was the purpose of the deceased to use the ax handle upon him, and, thus believing, prepared to defend himself out, rather than in, the house, where the deceased was in the presence of his brother and cousin? He had been given the lie, yea, the “d—d lie,” by deceased; he saw deceased seize the ax handle, whereupon he. placed his hand upon his pistol. This he had the right
We think this view of the case might be taken, and, if so, the facts do not render it absolutely certain that this was a mutual combat. This was the theory of the defense, and in order that it might be.presented to the jury, the counsel for defendant-requested the following charge, which was refused.
“If you should find and believe from the evidence that the defendant did not in fact agree to go out of the house with the deceased, and fight with him, but that the object and purpose of defendant was to free himself from the danger or supposed danger which then environed him, and you further believe from the evidence that the deceased, immediately upon getting out of the house in which said parties then were, by any act done, or by words coupled with such act, induced the defendant to believe that he, the deceased, was then in the act, or was about to inflict either death or serious bodily injury upon the defendant with an ax handle, and you further believe from the evidence that such ax handle was such an instrument that, in the mode and manner of its threatened use, was capable of inflicting death, or was capable of inflicting serious bodily injury upon the defendant, and you further believe from the evidence that at the time it reasonably appeared to the defendant that it was then the intention of deceased to inflict death or serious bodily injury upon him by deceased, then, in'such case, the defendant’s right of self defense would not be abridged or compromitted in any manner, and if the defendant, under such circumstances, shot and killed the deceased, he would be justifiable under the law, and you will find him not guilty.”
We are of the opinion that this charge should have been given,, and because of its refusal the judgment is reversed and the cause remanded.
Reversed and remanded.