Shaw v. State
This text of 510 S.W.2d 926 (Shaw v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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OPINION
The offense is murder without malice; the punishment, five years.
In his sole ground of error, appellant complains of the failure of the trial court to give a requested charge that the jury find the appellant not guilty if they found that at the time appellant killed the deceased the deceased was taken in an act of adultery with the wife of the appellant and before the deceased and appellant’s wife had separated.
Appellant maintains that the evidence raised the defense of justifiable homicide under Article 1220, Vernon’s Ann.P.C.,1 necessitating an appropriate charge.
The trial court made a determination prior to the start of the trial in this case that on August 20, 1971, the date of the offense, the appellant and Brenda Olbrych were common law husband and wife.
Brenda Olbrych testified that, following her divorce from Robert Olbrych in March of 1971, she and appellant had begun living together. Before Brenda Olbrych’s marriage to Robert Olbrych, she and appellant had been married for some five years before a divorce in October of 1968. Appellant and Brenda cohabitated from March 1971 until May 1971, when they separated for a time. It was at this point in time, during which the court had determined that a common law marriage existed, that Brenda began seeing Eugene Hintz, the deceased, who was a long time friend of appellant. Appellant testified that he was aware of the relationship between his wife and Hintz for some time and had asked Hintz to stop seeing his wife.
On the night in question, Brenda testified that appellant telephoned her at her apartment twice, saying that he wanted to talk to her. She admitted to appellant that Hintz was with her and refused to talk to appellant. Subsequently, appellant went to Brenda’s apartment and shouted for Brenda to come outside so that he could talk to her. Although the door remained closed, appellant continued for some ten to fifteen minutes to urge Brenda to come and talk to him, which she refused to do. Brenda testified that it then appeared that appellant had gone, but some five minutes later he again began shouting at Brenda and kicked open the apartment door. Hintz was standing at the kitchen table fully dressed holding a knife. Brenda testified that earlier in the evening she and Hintz had engaged in sexual intercourse, but there was no testimony that they had been [928]*928engaged in sexual intercourse immediately-preceding the events here described.
We quote a portion of the testimony:
“A [Appellant] I went upstairs and I knocked on the door again and I said, ‘Brenda, I just want to talk to you, come out here and talk to me, please ?
Q [Defense Counsel] Brenda was standing by the door ?
A Yes sir.
Q You kicked the door and it opened is that right?
A Yes sir.
Q Now at that time when you opened the door and you were standing there, what happened ?
A Well, I walked in and I told her, ‘I just want to talk to you’, and she didn’t say anything, she just looked over my shoulder.
Q Over this way?
A Yes sir.
Q Okay, and then what happened ?
A When she looked, she was trying to divert my attention away, and then I ⅞ turned around, and when I turned around I saw Gene.
Q Where was he standing ?
A Gene-his exact position I don’t know, he was between the table and the wall.
Q So when you looked over there you saw Gene standing there ?
A Yes sir.
Q Did he shout anything?
A Well, I turned and I saw him, and I saw a knife; I didn’t see his face, I just saw a knife.
Q What kind of knife ?
A It was a long knife; it looked like a carving knife, a butcher knife, it was a long knife.
Q But you didn’t see his face ?
A No sir.
Q Did you know it was him ?
A When I turned I got a glimpse of his entire body, but my eyes focused on his knife, I looked at the knife more than anything; I have tried to think before of the expression on his face, but I didn’t see it.
Q When you turned and saw that knife, did you have that knife in your hand then ?
A No sir.
Q Now, when you saw him with that knife were you scared?
A Yes sir, because he wasn’t standing still, he was moving toward me, but it wasn’t a fast move, it was a slow move. He wasn’t running towards me or anything, it was just like he was coming out of the kitchen.
Q This way?
A Yes sir.
Q Were you in fear of your life at that time?
A Yes sir.
Q What did you do ?
A Well, I told you that the first time I came over there I put that knife in the small of my back and I had the shirt over it, and when I saw him, I turned and saw him- and it all happened so fast, he was just moving, ■ but he was not moving fast, he was moving toward me, and when I turned and I saw him I saw the knife, and I went for mine, and I pulled my knife and he was right on me.”
[929]*929The court charged on self defense, and the jury rejected this theory of defense by their verdict.
The evidence does not reflect that the deceased was in fact “taken in the act of adultery” so as to raise the defense of justifiable homicide. There is no error shown in refusing the requested charge. See McFarland v. State, 149 Tex.Cr.R. 516, 196 S.W.2d 829; Halbert v. State, 138 Tex. Cr.R. 592,
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510 S.W.2d 926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-state-texcrimapp-1974.