Spearman v. State

23 Tex. Ct. App. 224 | Tex. App. | 1887

Willson, Judge.

In his charge to the jury the learned trial judge, upon the subject of mutual combat, charged as follows: “ Where two parties arm themselves and voluntarily engage in a combat with each other, with deadly weapons, knowing that such combat will, or may probably produce the death of either or both of them, then neither of such parties could claim the benefit of the law of self defense, but if they boih intended to kill, both may be guilty of assault with intent to murder.” And in another paragraph of the charge as follows: “But if the defendant voluntarily engaged in a combat with W. B. Howard, with deadly weapons, knowing that it would or might probably result in the death of W. B. Howard or of himself, or in some serious bodily injury which might probably result in the death of Howard or himself, * * * he could not avail himself of the privilege of self defense, no matter to what extent of danger he may have been reduced in the combat, and no matter which party struck the first blow, or fired or attempted to fire the first shot, and in such case the defendant would be guilty of assault with intent to murder.”

The above quoted paragraphs of the charge were excepted to by the defendant, and he submits the proposition that, “ where a combat is mutually waged with deadly weapons, on equal terms, where death does not ensue, the offense is aggravated assault,” and not assault with intent to murder. In support of this proposition he cites King’s case, 4 Texas Court of Appeals, 56; Wilson’s case, Id., 644; Sanches’ case, 24 California, 17, and Crowley’s case, 56 California, 36. We concede that these cases support the proposition stated, and we concede the correctness of the decisions when considered with reference to the rule at common law, and without regard to our statute of manslaughter. But, when viewed with reference to our statute of manslaughter, these decisions, in our opinion, can not be held to be the law of this State, without material qualification. To reduce a homicide from murder to manslaughter, under the law of this State, the homicide must not only be committed under the immediate influence of sudden passion, but that sudden passion must arise from an adequate cause, and this adequate cause is defined to be “such as would commonly produce a degree of anger, rage, resentment or terror, in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” (Penal Code, arts. 593-595.) How, unless this adequate cause existed, the homicide would not be reduced to manslaughter, although it may have been the result of sudden passion on the part on the slayer. At common law, adequate cause was not required to reduce the homicide to manslaughter, but only that it was committed under the influence of sudden passion, without malice aforethought. Thus, it will be seen, there is a very material difference between manslaughter at common law, and that offense as defined by our code. We think the true doctrine under our statute is that announced by this court in Crist v. The State, 21 Texas Court of Appeals, 361, as follows: “ When parties mutually engage in a combat with deadly weapons, under circumstances which would not reduce to manslaughter, if either party is killed, the party killing would be guilty of murder, and the fact that the combat is mutual would not, ipso fado, reduce to manslaughter.” In other words, a homicide committed in mutual combat would not be reduced to manslaughter unless it was committed under the influence of passion, arising from an adequate cause. This being our view of the law, and the charge of the court being in harmony with this view, and applicable to the facts of the case, we hold it to be correct.

Several objections are urged by appellant’s counsel to the court’s charge upon the issue of self defense. We shall consider but one of these objections. Among other rules governing self defense the court gave the following: “Homicide, to be justifiable, must be in fact in self defense, and not merely colorably so.” This was excepted to at the time it was given. In Babb’s case, 8 Texas Court of Appeals, 173, an instruction in almost the very language of the above was held erroneous, because it destroyed all that portion of the charge which permitted defendant to invoke the right of self defense against reasonable apprehensions and expectations of death or some seriously bodily injury. In the case before us, we think the clause of the charge above quoted was well calculated to cause the jury to overlook and disregard that well settled principle of the law of self-defense, that one who commits a homicide is justified in so doing if he acts upon reasonable appearances of danger of death or serious bodily injury to himself, which reasonable appearances are to be considered and determined from his standpoint. It matters not in such case whether the danger was real; whether it in fact existed, or whether it was merely colorable. If, from the defendant’s standpoint, taking into consideration all the circumstances of the case, it would reasonably appear to him that he was in danger of death or serious bodily injury from Howard, he had the right to kill him, although in fact such danger did not exist. Each juror must place himself in the position of the defendant, and determine from all the facts as they appeared to him at the time, whether his apprehension er fear of death or serious bodily harm was reasonable; and if so they must acquit. (Marnoch v. The State, 7 Texas Ct. App., 275; Jones v. The State, 17 Texas Ct. App., 612; Jordan v. The State, 11 Texas Ct. App., 447; Brumly v. The State, 21 Texas Ct. App., 240; Bell v. The State, 20 Texas Ct. App., 450; Horbach v. The State, 43 Texas, 242.)

Opinion delivered March 18, 1887.

This important principle of the law of self defense is not clearly explained in any portion of the charge of the court, and even if it had been, as was said in Babb’s case, it would have been destroyed by the clause complained of, and above quoted. Because of this error in the charge the judgment must be reversed and the cause remanded. In other matters complained of by defendant we perceive no error.

Reversed and remanded.