Ashworth v. State

Court of Appeals of Texas

Ashworth v. State

19 Tex. Ct. App. 182, 1885 Tex. Crim. App. LEXIS 178

Court of Appeals of Texas·Decided October 31, 1885·No. No. 2053·Published

Opinion

Willson, .Judge.

There is evidence in this case tending to prove that the defendant fired the fatal shot in defense of his brother, Valentine Ashworth. This evidence is furnished by the testimony of Josiah Willis, who was present at the time of the homicide. He states, in substance, that deceased, who was armed with a double-barreled shot-gun, assaulted Valentine Ashworth with said gun, fired one shot, and was struggling with said Valentine, who had seized, or was attempting to seize, hold of the gun, when defendant shot and killed the deceased with a pistol.

We think this testimony clearly and directly presents the issue that the defendant'committed the homicide in defense of bis brother, and whether such testimony be true or false, it demanded a charge [195]*195submitting the issue to the jury, and explaining the law relating thereto. Ho such charge was given. A very brief, and, ive think, incomplete, instruction upon the law of self-defense was contained in the charge, but this confined the jury to a consideration of whether or not the defendant acted in his own defense. It was the right of the defendant to have the law of self-defense, in all the phases in which it might be applicable to the proof, explained to the jury fully and correctly. (King v. The State, 13 Texas Ct. App., 277; Edwards v. The State, 5 Texas Ct. App., 593; Guffee v. The State, 8 Texas Ct. App., 187; Foster v. The State, id., 248; Kemp v. The State, 11 Texas Ct. App., 174; North v. The State, 12 Texas Ct. App., 111; Sterling v. The State, 15 Texas Ct. App., 249.)

Because of this material omission in the charge of the court, the conviction must be set aside. There are also other supposed errors in the charge of the court, complained of by the defendant, which we shall not take time to discuss, as they are not of sufficient importance to require investigation, in view of the disposition to be made of this appeal, and because such errors are not of a character likely to be repeated on another trial.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

[Opinion delivered October 31, 1885.]

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Willson, .Judge.

There is evidence in this case tending to prove that the defendant fired the fatal shot in defense of his brother, Valentine Ashworth. This evidence is furnished by the testimony of Josiah Willis, who was present at the time of the homicide. He states, in substance, that deceased, who was armed with a double-barreled shot-gun, assaulted Valentine Ashworth with said gun, fired one shot, and was struggling with said Valentine, who had seized, or was attempting to seize, hold of the gun, when defendant shot and killed the deceased with a pistol.

We think this testimony clearly and directly presents the issue that the defendant'committed the homicide in defense of bis brother, and whether such testimony be true or false, it demanded a charge [195]*195submitting the issue to the jury, and explaining the law relating thereto. Ho such charge was given. A very brief, and, ive think, incomplete, instruction upon the law of self-defense was contained in the charge, but this confined the jury to a consideration of whether or not the defendant acted in his own defense. It was the right of the defendant to have the law of self-defense, in all the phases in which it might be applicable to the proof, explained to the jury fully and correctly. (King v. The State, 13 Texas Ct. App., 277; Edwards v. The State, 5 Texas Ct. App., 593; Guffee v. The State, 8 Texas Ct. App., 187; Foster v. The State, id., 248; Kemp v. The State, 11 Texas Ct. App., 174; North v. The State, 12 Texas Ct. App., 111; Sterling v. The State, 15 Texas Ct. App., 249.)

Because of this material omission in the charge of the court, the conviction must be set aside. There are also other supposed errors in the charge of the court, complained of by the defendant, which we shall not take time to discuss, as they are not of sufficient importance to require investigation, in view of the disposition to be made of this appeal, and because such errors are not of a character likely to be repeated on another trial.

The judgment is reversed and the cause is remanded.

Reversed and remanded.

[Opinion delivered October 31, 1885.]

Ashworth v. State, 19 Tex. Ct. App. 182, 1885 Tex. Crim. App. LEXIS 178 (Tex. Ct. App. 1885).

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