Bell v. State

17 Tex. Ct. App. 538, 1885 Tex. Crim. App. LEXIS 25

• Court: Court of Appeals of Texas
• Decided: February 11, 1885
• Docket: No. 1756
• Status: Published

Opinion

Willson, Judge.

It cannot be questioned but that the evidence is sufficient to sustain the conviction. It is not so clear and conclusive of the defendant’s guilt, however, as to exclude a lower grade of homicide than murder-in the second degree, ór justifiable homicide in self-defense. As we view the evidence, it demanded of the trial court to instruct the jury, 1st. Upon the law of murder in the second degree; 2d. Upon the law of manslaughter; and, 3d. Upon the law of self-defense. In the main charge the court sufficiently, and with substantial correctness, explained to the jury the law of murder in the second degree and of manslaughter.

It omitted entirely to submit the issue of self-defense. To supply this omission, defendant’s counsel requested a special instruction in the following language, viz.: “If the jury believe, from all the facts and circumstances in evidence, that, at the time of the difficulty between the deceased Moreland and the defendant Bell, and at the time Bell inflicted the injury which proved fatal (if the jury find that Bell did inflict the injury), that Bell did not intend to kill Moreland, and only intended by his acts to defend himself from an unlawful and violent attack made upon him by Moreland, and used no means in such resistance disproportioned to such attack, considering the relative disproportion in size of the combatants (if there was such disproportion), and Bell had reason to believe and did believe that such attack was likely to endanger his own life, or result in serious bodily injury to himself, then the homicide would be justifiable, and the jury Avill acquit.” This special charge was given, and it constitutes the only charge given to the jury upon the issue of self-defense,— nor did the defendant request any additional charge upon the subject.

At the time of the trial no exceptions were taken by the defendant to the charge of the court or any portion of it, but in his motion for a new trial several objections to it are urged, which are insisted upon in this court, and among them, that “ the court erred in failing to define justifiable homicide, and in failing to submit to the jury proper issues arising upon the evidence as to the law of self-defense and justifiable homicide.” This objection is, Ave think, Avell taken. As far as it goes the special charge Ave have quoted is correct and applicable to the evidence. It does not, however, go far enough. It does not give all the law of self-defense demanded by the evidence. It should have stated that the defendant, if unlawfully attacked by the deceased, xvas not bound to retreat in order to avoid the necessity of killing him. (Penal Code, art. 573; Williams v. The State, 14 Texas Ct. App., 102.) This is a very material part of the law of self-defense, and is a statutory innovation upon the common law, and upon the common view of Avhat constitutes self-defense. The common law required the assailed party to “retreat to the wall,” and this requirement, while it no longer exists as the law of this State, is still believed by many who are unlearned in the law to be in force. In all cases, therefore, where the issue of self-defense arises from the evidence, the jury should be instructed that the assailed party is not bound to retreat in order to make perfect his right of self-defense. And wThen the evidence presents the issue of self-defense, the law, and all the law, applicable, to that issue, as made by the evidence, should be given in charge to the jury, whether requested or not. (Edwards v. The State, 5 Texas Ct. App., 593; King v. The State, 13 Texas Ct. App., 277.)

"When the court omits to do this it is error, and, if excepted to at the time of the trial, the conviction would necessarily be set aside. But if the error be not excepted to, but be called to the attention of the trial court for the first time in a motion for new trial, it will not be cause for reversal unless it should appear to this court that the defendant’s rights have probably been injured thereby. (Gilley v. The State, 15 Texas Ct. App., 287.)

In the case before us, the inquiry therefore arises, did the error of the court, in failing to instruct the jury that the defendant was not bound to retreat, probably weaken his plea of self-defense, and prejudice his legal rights in respect thereto? In view of the evidence in the case, we must say that in our opinion it was calculated to have that effect. It was within the power of the defendant to have retreated, and by this means to have avoided the necessity of killing the deceased. It may have been the opinion of the jury that he should have retreated, and that, as he did not in this way avoid his assailant, he was not justified in slaying him. They should have been told by the court that the law of this State does not require retreat under any circumstances. By giving the special charge requested, the trial judge conceded, and we think correctly, that the issue of self-defense was presented by the evidence, and this special charge called his attention to that issue, and, being imperfect, it was the duty of the court to supply its defects by additional instructions. Because the charge as requested was not as full as the law required, should not, we think,- be regarded as a waiver by the defendant of his right to ■ a full and correct charge, and should not be held to relieve the court of the duty of giving such charge. Considering the evidence in this case, we think the failure of the court to give in charge article 573 of the Penal Code was material error calculated to injure the rights of the defendant, and is therefore reversible error although not excepted to at the time of the trial.

After the court had delivered its charge, and the special charges requested by the defendant’s counsel, and as the jury were about to. retire to consider of their verdict, counsel for the State requested the following special instruction, which was given, viz.: “ If the jury believe from, the evidence that the defendant, Bill Bell, did cut and wound A. T. Moreland with a knife, and said act was not done in self-defense as defined in the charge already given, and that the natural and probable consequence of the assault with the knife (if any) was to cause the death of said Moreland, or produce great bodily injury, then the defendant is presumed by the law to have acted with an intent to kill.” In the main charge the court had already instructed the jury that if the evidence satisfied their minds beyond a reasonable doubt that the manner in which the knife was used evinced an evil or cruel disposition, or an intention on the part of defendant to kill, they should find him guilty of murder or manslaughter according to the facts of the case. "We think the main charge of the court was sufficient upon this subject. Even if the special charge was abstractly correct, it was improper to give it, because it gave undue prominence to the presumption arising against the defendant from the character of the weapon and the manner in which it was used.

But we are not prepared to say that the special charge was even abstractly correct, especially in view of the evidence in the case. It was not shown clearly that the wounds inflicted upon deceased were inflicted with a knife, and, if with a knife, that it was such an one as was calculated ordinarily to produce death or serious bodily injury, when used in the manner and under the circumstances here shown. There were but two wounds upon deceased, one in the arm, which was slight, and the other in the temple above the eye, which proved fatal. These wounds were made with some sharp pointed instrument and were small. It is quite reasonable to infer that the wounds were made with a knife, but still the testimony does not place this conclusion beyond doubt. If made with a knife, evidently it was a small one, as demonstrated by the small size of the wounds. The fatal wound was fatal because perhaps of its locality. The instrument used penetrated at the suture or lap in the skull bone, fracturing the bone to some extent, and wounding the brain, producing meningitis which caused death. Had the blow fallen on almost any other portion of the body it might not have been serious, much less mortal. Therefore, the fact that the wound produced death does not of itself warrant the deduction that the instrument used was of a character calculated ordinarily, when so used, to produce death or serious bodily injury.

It is not every Ttnife that is a deadly or even a dangerous weapon, and yet with any kind of a knife it is possible, no doubt, to produce death or serious bodily injury. A small sewing needle is not an instrument that could be considered deadly or dangerous, and yet one skilled in human anatomy might, under favorable circumstances, use it with fatal effect, or it might be so used accidentally, or without any intention to kill or seriously injure. Considering the absence of any evidence, except the fatal result of the wound, to show the deadly or dangerous character of the weapon used, we are of the opinion that the special charge is not even abstractly correct when viewed with reference to the facts of this case, and that under the circumstances it was erroneous, and prejudicial to the defendant’s rights. It was furthermore not in harmony with the main charge, which submitted to the jury, as a question to be determined from the evidence, whether or not, in inflicting the blows, it was the intention of the defendant to kill or inflict serious bodily injury. The special charge, in a great measure, supplied this question of fact with a presumption of the law, and that, too, without explaining •that this presumption of the law was not a conclusive one, but that it might be removed by other evidence showing an absence of such criminal intent. The intent with which the wounds were inflicted was a most vital issue to the defendant. Upon this pivot hung his fate. In the main charge this issue was properly submitted to the jury to be determined by them from the evidence, without the aid of any presumption of law, except that the defendant should be presumed innocent until his guilt was established by competent evidence. Here, we think, upon this issue, the charge should have rested.

Presumptions of law which are against a defendant should not ordinarily be given in charge to the jury. There are exceptional cases in which it is proper to cast into the scales against the defendant such presumptions, but the case before us is not one of that character. In Gatlin v. The State, 5 Texas Ct. App., 531, the court in its main charge instructed the jury upon the issue of intent as affected by the instrument or means used by which a homicide was committed. The charge given in that case was held by this court to be correct, but upon comparing it with the charge given in this case, it will be found to be quite different and not objectionable when applied to the facts of that case.

We are of the opinion that the facts of this case are of a character which demanded of the trial court a full and correct charge upon justifiable homicide in self-defense, and also a full and correct charge upon the issue of the defendant’s intent in inflicting the wounds, leaving the jury to determine that intent from the evidence in the case, without incumbering such determination with any arbitrary presumption of the law, adverse to the presumption of innocence. Believing that he has not had the benefit of such a charge,, and that thereby his rights have probably been prejudiced, the judgment is reversed and the cause is remanded.

lieverseci and remanded.

[Opinion delivered February 11, 1885.]