North v. State , 12 Tex. Ct. App. 111 ( 1882 )

Winkler, J.

The appellant was indicted for an assault with intent to murder one E. E. Work, and was oir the trial acquitted of the charge of assault with intent to - murder, but convicted of an aggravated assault, and a. fine was imposed of $25. On the trial the court gave to the jury a somewhat lengthy charge as to what would constitute murder of both the first and of the second degrees, defining express and implied malice, and gave theni the test by which should be determined the intent to commit murder, and also the law of manslaughter and aggravated assault, in a manner sufficiently appropriate under the evidence to enable the jury to apply the law to the evidence.

After the delivery of the general charge, counsel for the defendant requested certain instructions, which the court refused, and among them the following: “ The jury are also instructed that if they believe from the testimony that Work was in the act of procuring a shot-gun to engage in a conflict with Con North before Con North, had done any act showing a purpose to injure said Work, then you are instructed that Con North had the right to shoot, and Con North was not bound to wait until Work had made an effort to shoot; and if under these circumstances the defendant shot at Work (if you find he shot at all), you are instructed that he had the right to shoot.” This refused instruction' enunciates a correct principle of law, but states it too strong against the prosecution. It should have been given with this modification,—that, if the life of Con North was seriously endangered by the acts of Work, and the danger was imminent and pressing, in such case the defendant had the right to shoot in order to prevent the intended or threatened injury to Con North. Foster v. State, 8 Texas Ct. App. 248; Guffee v. State, 8 Texas Ct. App. 187; Kendall v. State, 8 Texas Ct. App. 569; Ross v. State, 10 Texas Ct. App. 455.

A suitable instruction on this subject was rendered necessary as a. part of the law of the case by the fact that it was shown in proof that Con North and the defendant were brothers; that the defendant and Work had met by appointment at the time and place of the difficulty, to have a certain investigation as to matters between them; which meeting had not resulted in anything of an unfriendly character, though they had been talking together for some time prior to the arrival of Con North; and that Work had a double-barreled shot-gun in the wagon in which he had ridden to the place. There was testimony tending also to show that after Con North arrived at the place of the difficulty, he began to converse upon the subject which the defendant and Work had met to discuss, and this resulted in a resort to and the use of firearms between Con and Work. Several shots were fired,. Con North using a pistol, and Work a shot-gun. Agreeably to the "testimony, there had been no unfriendly demonstrations between the defendant and Work until' after the firing had commenced. Hence the necessity of a suitable instruction as to the right of the defendant, under the circumstances, to act for the prevention of the threatened danger to his brother.

In response to the argument on behalf of the State, it is deemed sufficient to say that the charge given was excepted to, and charges intended to supply an omission were requested by the defendant’s counsel, and were refused by the court. Because of error in refusing, with proper modification, to give the requested instruction, the judgment will be reversed and the case remanded for a new trial.

Reversed and remanded.