Barkley v. State , 152 Tex. Crim. 376 ( 1948 )

Appellant insists that in submitting self-defense based upon threats, the trial court should have told the jury that in determining whether the deceased was doing some act showing an intention to execute the threat, his words in connection therewith should also have been included in the charge.

Paragraph 18 of the court's charge is as follows:

"You are further instructed that where a defendant accused of murder seeks to justify himself on the grounds of threats against his own life, he is permitted to introduce evidence of the threats made, but the same shall not be regarded as affording justification for the offense unless it be shown that at the time of the homicide the person killed by some act then done manifested an intention to execute the threats so made, if made."

It is noted that said instructions is a copy, in part, of Art. 1258, P. C. In paragraph 19 of the charge, the court applied the law as stated generally in paragraph 18. No exceptions were addressed to paragraph 19 but only to paragraph 18, and then upon the ground that it deprived the appellant of consideration of the words used by the deceased in connection with his acts, and "requests the court after the words, page 4, paragraph 18, 'by some act then done' to there add the words, 'or words spoken.' " It will thus be seen that by the objection the trial court was specifically directed to paragraph 18, and in effect wanted the court to supplement the statute by adding thereto the words indicated. Neither the trial court nor this court has the power to legislate and read into a statute something which the legislature has omitted therefrom.

The application of what is now Art. 1258, P. C., has been considered many times. In Clark v. State, 51 Tex.Crim. R.,102 S.W. 1136, this court said, "We do not believe the statute can be well improved on in this respect, and, where a right is given in the language of the statute, it is generally best to follow this language, and not attempt to improve on it." In Bayer v. State, 96 Tex.Crim. R., 257 S.W. 242, is the following statement regarding this same statute, "We think it always better in charging upon this subject to follow the language of the statute." Other cases holding that an instruction on the subject of threats was sufficient if in the language of Art. 1258, P. C., are Broussard v. State,137 Tex. Crim. 273, 129 S.W.2d 295; Johnson v. State, 140 Tex.Crim. R.,143 S.W.2d 771; Williams v. State, 147 Tex.Crim. R., 179 S.W.2d 297; and Fisher v. State, 148 Tex.Crim. R., 185 S.W.2d 567.

The court not only instructed upon the law of self-defense based upon threats, but also upon self-defense generally. Upon self-defense generally, the court advised the jury that appellant had the right to act upon real or apparent danger, and if appellant reasonably believed that the deceased was making or about to make an attack upon appellant which from his standpoint caused him to have a reasonable apprehension or fear of death or serious bodily injury and appellant killed deceased under such circumstances to acquit him. The court then gave the following additional charge:

"You are further instructed that in determining the existence of real or apparent danger it is your duty to consider all of the facts and circumstances in the case in evidence before you and consider the words, acts and conduct, if any, of the deceased at the time of and prior to the time of the killing and consider whatever threats, if any, the deceased may have made to the defendant and consider any difficulty or difficulties which the deceased had had with the defendant and you may consider the relative strength and size of the parties at the time of the killing."

When considered in its entirety the trial court's charge appears to have given the appellant the benefit of every right to which he was entitled.

Appellant's motion for rehearing is overruled.