Casey v. State (54 Tex. Crim. 584, 1908)

DAVIDSOU, Pkesidiktg Judge.

Appellant was convicted of murder in the second degree, his punishment being assessed at five years imprisonment in the penitentiary.

The record does not contain any ‘billa of exception. The errors assigned are directed against the charge of the court on manslaughter and self-defense.

1. In regard to manslaughter, the court charged as follows: “If 3rou believe from the evidence, beyond a reasonable doubt, that the defendant shot and thereby killed the sai'd J. F. Harrison, but you further believe from the evidence, that at the time he did so, the deceased had made an .attack on him with a knife, and you further believe from the evidence, beyond a reasonable doubt, that the defendant was not justified in so doing, on the ground of self-defense as this law is given to you iu this charge hereafter, but 3rou do believe that such attack ou defendant would commonly have produced a degree of anger, rage, resentment or terror in a person of ordinary temper sufficient to render the mind incapable. of cool reflection, then you may find that such attack is adequate cause to reduce the homicide to the grade of manslaughter.” Then follows .a general charge under which the jury were instructed, that any condition or circumstance which, in their opinion, would commonly produce such degree of anger, rage, resentment, etc., might be adequate cause. We ' are of opinion that the charge is incorrect. The facts upon which this charge was predicated arise out of a difficulty occurring at the time of the homicide. Appellant was the owner of the premises at the time the homicide occurred, deceased being his tenant or renter. Without going into a statement of the conversation, appellant was standing in the door that led onto the gallery.—.perhaps just outside based upon a state of facts upon which self-defense alone could be predicated. We, therefore, are of opinion that this charge is incorrect; first, in basing the charge upon a real attack, and, second, in placing appellant’s case before the jury so that he might be convicted of manslaughter -on a case of self-defense.

2. The charge on self-defense is criticised wherein the court informed the jury that if 'appellant killed Harrison, but at the time he did so Harrison had made an attack on him, which, from the manner and! character of it, etc., created in his mind or caused him in believe that he had a reasonable expectation or fear of death or serious bodily injury, and acting under such reasonable expectation the defendant killed deceased, they should acquit him. We have sufficiently stated the facts as testified1 by -appellant. Under his testimony it showed an actual attack, and the court, therefore, was not in error in submitting the theory of self-defense on the idea of an actual attack.

3. There were no eyewitnesses to the transaction who testified on the trial except appellant. The State, therefore, introduced appellant’s statement through some of the witnesses as to how the transaction occurred. Had the case closed at this point, appellant’s contention that the court should have informed) the jury that the State would be required to disprove his statements in order to obtain a conviction, under the authority of Jones v. State, 29 Texas Crim. App., 20; Pratt v. State, 50 Texas Crim. Rep., 227; 96 S. W. Rep., 8, and Slade v. State, 29 Texas Crim. App., 381, would be correct. For a full discussion of the matter, in addition to the eases cited, see Combs v. State, 52 Texas Crim. Rep., 613; 108 S. W. Rep., 649, and Pratt v. State, 53 Texas Crim. Rep., 281; 109 S. W. Rep., 138. However, this charge may not be necessary in this case inasmuch as the defendant took the stand in his own behalf and testified fully in regard to the facts of the case, and the case was not therefore one alone based upon defendant’s confessions or statements. As the case is presented, therefore, we would not feel called upon to reverse the judgment for this omission in the charge.

The judgment is reversed and the cause is remanded.

Reversed md remanded.