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I do not agree with the opinion of the majority of the court reversing the case on motion for rehearing.
If the charge complained of by appellant puts a restriction upon appellant's right of self-defense, then special charges, numbers 2, 4, 5 and 6, given by the court at the request of appellant clearly cover any possible harm in the charge complained of and render harmless any inaccuracy therein.
Said charges are as follows:
"You are charged that it is not unlawful for a person to bet or wager money on his skill and ability to throw an anvil over his head; so that if in this case, you believe from the evidence that prior to the shooting that deceased and defendant mutually made a bet as to whether or not the defendant could pick up and throw an anvil over his head and that each placed the money so bet to wit: one dollar in the hands of one Calvin Stuckey as a stake-holder, and that thereafter defendant did pick up and throw said anvil over his head and did win said bet, then you are instructed that the defendant would in law be entitled to the possession of the money so won in the hands of said stake-holder. And if after winning said money deceased grabbed or snatched said money out of the hands of the stake-holder and refused to give same to defendant; and thereafter started away with said money, then you are charged that defendant would have the lawful right to seek deceased for the purpose of demanding the possession thereof. And you are further charged that in going in quest of deceased, he would have the lawful right to arm himself in anticipation of any attack the deceased might make upon him when they met; and if you further believe that defendant looked deceased up and after overtaking him, demanded his money, which deceased refused to surrender; whereupon an altercation ensued between them in which deceased cursed and abused defendant and drew a knife upon and started towards defendant in a threatening manner, and defendant believed from the acts, conduct and declaration of deceased he was in danger of being killed or of suffering serious bodily injury at the hands of deceased, then he would have the lawful right to shoot and kill deceased, and if you so believe you will acquit defendant, or if you have a reasonable doubt thereof you will find him not guilty. And in this connection you are charged that you must place yourself in the position of defendant, and view the facts and circumstances in evidence from his standpoint, and if from all the facts and circumstances in evidence, you believe that it *Page 650 reasonably appeared to defendant at the time of the shooting he had a reasonable expectation or fear of death or suffering serious bodily injury at the hands of deceased, then defendant would have the lawful right to shoot and kill deceased in defending himself from such real or apparent danger; and in this connection you are charged that said danger need not be in fact real; but need only be apparent, viewing the same from defendant's standpoint at the time; and if defendant began shooting at deceased under circumstances indicated above, you are instructed that he would have the right to continue to shoot so long as he believed himself in danger from such threatened attack of deceased, if any."
No. 4. "The fact that the person arms himself before going to ask or demand possession of property that may belong to him, or that he believed belonged to him under the facts in evidence, does not deprive him of the right to defend himself from an unlawful attack made upon him. So if you believe from the evidence that deceased had a dollar in his possession, which defendant had won from him, and defendant, for the purpose of demanding possession thereof, armed himself and sought deceased with the view of demanding possession thereof, and that upon meeting deceased after cursing or abusing defendant, advanced upon him with a drawn knife, and defendant believed he was about to suffer serious bodily injury at the hands of deceased, or be killed by deceased, fired upon deceased with a pistol, in order to protect himself from such assault if any, on the part of deceased, then if you so believe you will find him not guilty, or if you have a reasonable doubt thereof, you will acquit him; and in passing upon this issue you will view the facts and circumstances in evidence from the standpoint of defendant as it appeared to him at the time of the difficulty, and not as the same may appear to you now."
No. 5. "You are charged that if you believe from the evidence that immediately before the killing, defendant had won a dollar from deceased, which deceased snatched and carried away and refused to give up to defendant when demanded, then you are charged that defendant would have the right to seek deceased for the purpose of demanding the money, and in doing so he would have the lawful right to arm himself, if he anticipated any unlawful attack upon himself; and if after overtaking deceased and demanding his money from him, deceased abused defendant and started towards him with a knife, then you are charged that defendant would have the right to use any force within his power to protect himself; and, if while deceased was making or in the act of making an unlawful attack upon defendant with a knife, defendant shot and killed deceased, then he would be guilty of no offense, and if you so believe you will find him not guilty. You are further charged in this connection that the fact that defendant armed himself before going to seek deceased would not impair or abridge his *Page 651 right of self-defense if his purpose in seeking deceased was to demand his money."
No. 6. "If you believe from the evidence in this case, that shortly before the killing, the defendant had won a dollar from deceased, which had theretofore been placed in the hands of one Calvin Stuckey, under an agreement that if defendant would pick up and throw over his head a certain anvil the said dollar should belong to and be delivered to defendant, and that deceased immediately thereafter snatched said dollar from the hands of said Calvin Stuckey, whereupon a quarrel ensued between deceased and defendant, and in which the said deceased drew a knife upon defendant, and threatened to kill him and started away with said money, and defendant immediately thereafter went to where deceased was, and again demanded the possession of said dollar, and deceased again refused to give it to defendant, but began to curse and abuse defendant, and to make a demonstration as though to draw a knife upon him, and you believe that such facts, acts and circumstances, taken in connection with the previous wrongs done him by deceased, and the circumstances all taken together were of such a character as to arouse in the mind of defendant such a degree of anger, rage, sudden resentment or terror as to render his mind incapable of cool reflection, and while in such condition he shot and killed deceased, you are charged that he could not be convicted of any offense higher than the grade of manslaughter."
Therefore, I believe the motion for rehearing should be overruled.
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Document Info
Docket Number: No. 3117.
Citation Numbers: 85 S.W. 938, 47 Tex. Crim. 638
Judges: HENDERSON, JUDGE.
Filed Date: 3/1/1905
Precedential Status: Precedential
Modified Date: 1/13/2023