Seaton v. State , 105 Tex. Crim. 451 ( 1926 )

Appellant, in his motion for rehearing, in view of another trial, seeks certain modifications or additions to the opinion heretofore rendered reversing the judgment.

Appellant insists that in paragraph 13 of the court's charge, his right to defend his life was unduly limited by the use of the following language:

"* * * yet if you believe that at the time the defendant shot and killed the deceased, Will Sweeden, the said Will Sweeden had placed his hand in his shirt bosom as if to draw a weapon, and started toward the defendant; or if you believe that it appeared to the defendant, viewed from his standpoint, from the acts or words, or both, of the deceased, at the time, that the deceased was about to attack him and that he was in danger of death or serious bodily injury at the hands of the deceased, etc."

It does not occur to us that under the evidence this could properly be regarded as a limitation. However, if upon another trial the appellant desires that specific matters be omitted and his right of self-defense be submitted in general terms, we discern no impropriety in so proceeding.

We call attention, however, to what may be a clerical error in paragraph 13, wherein the court, following the above language, said:

"* * * and that the defendant shot deceased to protect himself against such unlawful attack or threatened attack, if any, then the defendant would be guilty."

Possibly, in the original charge the word "not" appeared in the clause quoted so that it would read "would be not guilty."

With the foregoing remarks the motion for rehearing is overruled.

Overruled,