Tankersley v. State

21 S.W. 767 | Tex. Crim. App. | 1893

Appellant, having been charged by information with the offense of aggravated assault and battery, was upon his trial convicted of simple assault and battery.

When the case was called defendant made application for a postponement of the trial for the testimony of an absent witness, by whom he expected to prove threats of personal violence made against him by Benton, the alleged assaulted party.

The evidence adduced in behalf of the State was to the effect that defendant made a serious assault upon Benton with a hoe. If true, he was certainly guilty of an a aggravated assault. The testimony of the defendant, if true, clearly sustained his theory of self-defense. The jury convicted him of simple assault.

Threats made by in injured party, accompanied by his acts showing an intent to execute same, will justify necessary resistance by the party threatened. This resistance, however, is measured by such force as is or may be necessary to prevent the threatened injury.

Where the issue is of self-defence, and the testimony leaves it doubtful as to who began the difficulty, threats of the alleged injured party, made against the accused, is legitimate evidence, and may become of a most material character in assisting the jury to arrive at a correct conclusion as to who in fact did begin the difficulty, "because the fact that such threats had been made would tend to show an attempt to execute them probable if the opportunity was offered," "and the more ready belief of the accused would be justified to the precise extent of this probability." Stokes v. The People, 53 N.Y. 492; Keener v. The State, 18 Ga. 194; Oritchett v. The State,22 Ala. 39; Campbell v. The State, 16 Ill. 17; Cornelius v. The Commonwealth, 15 B. Mon., 539.

It would be no answer to this position that the accused could or might take advantage of the evidence of threats the more readily to execute the alleged assault. If this be true, it would not excuse him, or even tend to do so, but on the contrary would constitute an aggravating circumstance. It is a question of fact which the jury should be permitted to decide.

The court should have granted the postponement, and in failing to do so committed error, for which the judgment should be reversed. The judgment is reversed and the cause remanded for another trial.

Reversed and remanded.

Judges all present and concurring.