Strickland v. State

28 S.W. 466, 33 Tex. Crim. 559, 1894 Tex. Crim. App. LEXIS 167

• Court: Court of Criminal Appeals of Texas
• Decided: November 10, 1894
• Docket: No. 988.
• Status: Published

Opinion

DAVIDSON, Judge.

This conviction was for carrying a pistol. The evidence discloses, that defendant bad been forced into a difficulty in bis own bouse; that be bad been greatly cursed and abused; that it terminated in a second trouble three to five minutes later, on the sidewalk in front of defendant’s bouse; that during the latter difficulty bis antagonist was seeking to use a knife, when defendant exhibited and fired the pistol; that defendant’s assailant was in the wrong throughout the transaction, and was determined upon a continuance of the difficulty; and the facts do not justify the conviction.

The danger was not only imminent to defendant, but had been merged into an actual and serious attack. There was not sufficient time to admit of the arrest of the party, and it may be inferred, we think, from the facts, that defendant could not have left bis bouse except by passing bis belligerent and armed enemy. This, the sequel shows, would have been attended with danger to bis personal safety. Coleman v. The State, 28 Texas Crim. App., 173.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.