42 S.W. 972 | Tex. Crim. App. | 1897
Appellant was convicted of murder in the second degree, and his punishment assessed at twenty-one years in the penitentiary; hence this appeal.
Appellant complains of this portion of the charge of the court on self-defense: "All self-defense rests upon necessity. Where there is no necessity to kill, it can not be self-defense." This is law. Under peculiar circumstances, it would be necessary to qualify or explain what is meant by necessity. If the necessity was apparent only, then the charge might be calculated to mislead the jury, to the injury of the appellant; but, if the necessity was real, there is no injury in the charge. Apparent necessity must be as pressing and imminent as real necessity. The charge of the court is not treated fairly; for, when we read it altogether, it does not convey the idea that the necessity in this case must be real, and not apparent. Upon self-defense the court instructed the jury as follows: "All self-defense rests upon necessity. Where there is no necessity to kill, it can not be self-defense; but a reasonable apprehension of death or great bodily harm will excuse a party using all necessary force to protect his life or person, and it is not necessary that, there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time; and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant." As we before remarked, if the danger was actual, there was no necessity of charging the jury in regard to apparent danger; but this charge presents apparent danger clearly and explicitly, and, when considered as a whole, is the law, though the danger was apparent only.
Counsel complains of the following charge: "The law only allows a person to use such force as may be necessary to overcome the force that may be used against him, or, as he believes, is being used, or about to be used, against him. And in this case, if you believe from the evidence that John Baker was about to make an assault upon the defendant, but did not intend to kill him or inflict serious bodily injury upon him, and that it did not reasonably appear to defendant that said Baker intended to kill him or inflict upon him serious bodily injury, then, before defendant could justify, under the law of self-defense, the taking of the said Baker's *396 life, he would have to resort to all other reasonable means of defense. And in this case, if you believe from the evidence that John Baker did assault defendant at the time of the killing (if any), but had no intention to kill defendant or inflict upon him serious bodily injury, and that defendant reasonably knew said fact, then, before defendant could plead self-defense, it must appear from the evidence that, before he did kill said Baker, he used all reasonable means to avoid the necessity of killing said Baker; and if it does not appear from the evidence that he did so resort to other means before killing said Baker, such a killing would be murder or manslaughter, according to the nature of the assault made by said Baker (if any) upon defendant; and in this connection your attention is here directed to the law hereinbefore submitted relating to murder and manslaughter."
Appellant's contention is that the court should have instructed the jury that, if the assault by the deceased was such as to threaten death or serious bodily injury, then the defendant need not resort to other means, but could kill at once. The charge as given does not intimate that, in order to prevent the deceased from killing or inflicting serious bodily injury upon appellant, he must resort to all other means; but a state of case is submitted in the charge which clearly conveys the idea that, if such a state of facts existed, appellant would have the right to slay his adversary. Take this in connection with instruction given in relation to a homicide committed in the prevention of any other unlawful and violent attack; the jury could not have come to any other conclusion than that appellant would have to resort to other means to prevent the threatened injury. When we take the charge as a whole, we find it a correct application of the law to the case before the court.
Appellant requested the court to give the following special instructions: "You are further instructed that the defendant, William Williford, had a right to go to the home of his mother, although he knew that the deceased was there, and although he knew that John Baker was at said house legally, and did not desire William Williford to come there. And if the defendant desired to approach and speak to said Baker, and invite said Baker to go before Mrs. Williford in order to discuss and settle any reports before Mrs. Williford, he had the right to so approach said Baker, provided he did so in a polite manner, and not in an offensive or insulting manner. You are further instructed that if defendant believed that said Baker would make an assault on the defendant, then the defendant had a right to arm himself in order to defend himself in case said Baker did assault him with a knife or any other deadly weapon; and by so arming himself, and going to the deceased, Baker, under such circumstances, he would not be deprived of any of his rights of self-defense. But the defendant, under such circumstances, and in case he was assaulted by said Baker, or in case he believed from all the appearances that said Baker then and there intended to kill him or inflict serious bodily injury on him, then the defendant would have the right of self-defense, as stated in the general charge on that subject." *397
Said charge was refused, and appellant excepted. By referring to the court's charge on self-defense, it will be observed that the court gave a full charge on this subject, and authorized the defendant to slay deceased if deceased made the first assault on him, from which it reasonably appeared to him that his life was in danger, or he was in danger of serious bodily injury; and the court also instructed the jury that appellant would have the right to slay the deceased if deceased made an assault on him of a violent and dangerous character, less than an assault with intent to take his life or inflict upon him serious bodily injury; provided he used all other means, except retreating, in order to avoid the necessity of slaying the deceased. It will be observed, further, that the court gave no charge predicated on the idea that the defendant may have provoked the difficulty; and thus his right of self-defense was unlimited and unabridged by any charge on provocation. If the court had given a charge on provocation or a bringing on of the difficulty on the part of the defendant, then the charge asked by appellant would, have become necessary, but not otherwise. The judgment is affirmed.
Affirmed.
HURT, Presiding Judge, absent.
