152 S.W.2d 352 | Tex. Crim. App. | 1941
The offense is murder. The punishment assessed is confinement in the State penitentiary for a term of thirty-five years.
The State’s two main witnesses, who were present at the time, heard no conversation or argument of any kind or character between the appellant and deceased before the fatal shot was fired. The road up to the top of the mountain was very steep and rocky and the truck made considerable noise.
Mr. Holsomback testified for the State that on the forenoon of the day of the alleged offense he sold to appellant five 25-caliber automatic shells. She had a flash-light which was out of commission and asked him to repair it, but he was unable to do so.
The deceased died about a week later as a result of the gun-shot wound.
The foregoing is a brief statement of the salient facts proven by the State.
Bill of Exception No. 1 reflects the following occurrence: After the State and the defendant had introduced their evidence in chief, the State called Mrs. Watkins, wife of the deceased, and propounded to her the following questions and received the following answers, to-wit:
“Q. What is your name? A. Myrtie Watkins.
“Q. You were Myrtie Birdwell before you married? A. Yes.
“Q. Is your husband, Rufus Watkins, living or dead? A. Dead.
“Q. How old was he when he died? A. 41.
“Q. How many children do you have? A. Four.
“Q. Boys or girls? A. All girls, and are young.”
Appellant objected to the first four questions and the answers thereto on the ground that they were not in rebuttal of any evidence offered by the defendant, did not tend to prove any issue or shed any light upon any fact at issue but was offered for the purpose of inflaming the minds of the jury and prejudice them against her. The court overruled the objection, to which appellant excepted, and at the conclusion of the testimony, appellant requested the court to withdraw it from the jury, which request was also refused and appellant again excepted.
Appellant, in due time and in proper form, objected to the court’s charge upon several grounds: First, because the court failed to instruct the jury on the right of the defendant to extricate herself from an illegal restraint or false imprisonment; second, because the court failed to instruct the jury on the law relative to the theory of accidental shooting; and third, because the court, in his charge on self-defense, limited and restricted her right of self-defense to an attack causing fear of death or serious bodily injury when she was entitled to a charge on a milder or lesser attack under Article 1224, P. C.
We are of the opinion that appellant’s testimony was sufficient to raise the issue of an illegal restraint on the part of the deceased which entitled her to- an appropriate instruction from the court upon the law of her legal right to resort to such means as appeared to her at the time to- be reasonably necessary to extricate herself from such restraint, if any, taking into consideration the age, size and relative strength of the parties. We are of the opinion that the learned trial court committed error in declining to respect appellant’s objection to the omission of such an instruction in his charge. We think that a charge on this subject will obviate the necessity of a charge under Article 1224, P. C.
We are also of the opinion that appellant was entitled to an instruction on the accidental discharge of the pistol. If she was restrained of her liberty by the deceased and drew the pistol, not with the intention to kill him but to induce him to- release her and in the scuffle which ensued over the pistol it was accidentally discharged, she would not be guilty of murder.
“It is a well settled rule in this state that a defendant is entitled to an affirmative instruction upon every issue raised by the evidence, whether such evidence was produced by the state or the defense and whether it be strong or feeble, unimpeached or contradicted. See Kibbe v. State, 133 Tex. Cr. R. 494, 112 S. W. (2d) 733, and authorities there cited.”
For the error pointed out, the judgment of the trial court is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.