Gonzales v. State, 28 Tex. Ct. App. 130 (TX Ct. App. 1889)

Gonzales v. State, 28 Tex. Ct. App. 130 (TX Ct. App. 1889)

Court of Appeals of Texas

November 2, 1889, Decided

No. 3223

28 Tex. Ct. App. 130 | 12 S.W. 733 | 1889 Tex. Crim. App. LEXIS 150

Bernardino Gonzales v. The State.


Nicholson & Dodd, for appellant.

L. Davidson, Assistant Attorney-General, for the State.

Judges: Willson, Judge. Hurt, J., absent.

Opinion by: WILLSON


Willson, Judge.–In the charge of the court express malice is defined as follows: “Express malice is when a man with a cool and sedate mind, in pursuance of a formed design to kill another, or to inflict upon him some serious bodily injury which would probably end in depriving him of life, does kill such person.” This definition is incomplete and materially insufficient. It would embrace excusable and justifiable homicide. Cahn v. The State, 27 Tex. Ct. App. 709, 11 S.W. 723; Crook v. The State, Tex. Ct. App. 198.

Upon the issue of self-defense the jury are told in paragraph 8 of the charge that to justify the killing it must have taken place while the deceased was in the act of committing murder or maiming, or after some act done by him showing evidently an intention to commit such offense. Counsel for the defendant object to the use of the word “evidently” in this paragraph. It is the word used in the statute, and the objection is not maintainable. Penal Code, art. 570, subdiv. 2.

But there are objections to the charge on self-defense which, in our opinion, are sound ones. Upon this issue the charge is, to our minds, not as clear, comprehensive, and complete as it should have been. In explaining the rule as to apparent danger, it does not distinctly direct the jury that the danger must be judged of from the defendant’s standpoint, and no other, and from all the circumstances proved. While the charge undertakes to present this principle of the law, it falls short, we think, of presenting it clearly, affirmatively, and accurately. Minds uneducated in the nice distinctions of the law would not be likely to discover in the charge the well established rules relating to apparent danger. These rules should have been presented so plainly and appositely to the evidence as that the jury could not reasonably have overlooked or misunderstood them. The jury should have been told that if, at the time the defendant fired the fatal shot, it reasonably appeared to him from the circumstances of the case, viewed from his standpoint, that the deceased was then about to shoot him with a gun or pistol, he was justified in killing the deceased, although in fact they might believe from the evidence that the defendant was in no danger at the time of being shot by the deceased.

Again, we think the charge on self-defense is not sufficiently full and accurate with respect to threats as bearing upon that issue. Counsel for defendant requested an instruction upon this phase of the case, which, in our judgment, should have been given. It presents the law as to threats fully, affirmatively, and correctly. In the charge as given in relation to threats, it is required, in order to constitute justification, that the deceased, at the time of the homicide, manifested an intention then and there by words or gestures to execute the threats so made. The instruction should have gone further and stated that if the deceased, at the time of the homicide, did some act which was reasonably calculated, in view of all the circumstances of the case, to produce in the mind of the defendant the belief that the deceased was then about to execute the threat, the defendant would be justified in acting upon such appearance of danger.

Again, as a part of the law of self-defense, and applicable to all phases of it, the jury should have been told that the defendant was not bound to retreat in order to avoid the necessity of killing his assailant. This instruction is in the charge, but it is in the paragraph relating to the law as to threats, and is apparently restricted to that issue.

In the charge given to the jury is the following instruction: “If you find from the evidence that the defendant voluntarily engaged in a combat with the deceased with deadly weapons, knowing that it might or probably would produce the death either of the deceased or himself, or if, by his own wrongful act, he brought about the necessity of taking the life of deceased to prevent being killed himself, such killing will be murder in one of its degrees.” This instruction is in accordance with the doctrine announced in Gilleland’s case, 44 Tex. 356, and Logan’s case, 17 Tex. Ct. App. 50, and is correct when considered with reference to the facts of those cases. In the case before us we think the charge is erroneous. It deprives the defendant of self-defense entirely, if the killing was brought about by his wrongful act, without reference to his intent in the commission of the wrongful act. If the wrongful act was unaccompanied by any intent on the part of the defendant to kill or inflict serious bodily injury upon the deceased, or to commit any felony, such wrongful act would not deprive the defendant entirely of the right of self-defense, and would not necessarily render the homicide murder. It might be reduced to manslaughter, notwithstanding such wrongful act. Meuly v. The State, 26 Tex. Ct. App. 274, 9 S.W. 563; Johnson v. The State, Tex. Ct. App. 631; Bonnard v. The State, 25 Tex. Ct. App. 173, 7 S.W. 862; Alexander v. The State, Tex. Ct. App. 260; King v. The State, 13 Tex. Ct. App. 277. Furthermore, conceding that the evidence justified a charge on the law of mutual combat, and that the instruction above quoted is, as far as it goes upon that issue, correct, still, under the facts of this case, it should have gone further, and stated that although the defendant engaged voluntarily in the combat, yet, if he did so under the influence of sudden passion arising from an adequate cause, it would not be murder, but manslaughter. Spearman v. The State, 23 Tex. Ct. App. 224, 4 S.W. 586; Crist v. The State, 21 Tex. Ct. App. 361, 17 S.W. 260. In other respects than those we have specified we think the charge of the court is not objectionable, and that there was no error in refusing special instructions requested.

It was not error to reject the proposed evidence of statements made by defendant to the witness Morel after the homicide. These statements were not res gestae, but were self-serving declarations, and therefore inadmissible. The fact that under the law as it now is a defendant may testify in his own behalf does not render his declarations admissible in evidence. The rules relating to declarations made by defendant have not been abrogated or in any manner changed by the statute allowing a defendant to testify in his own behalf.

Other questions presented are not discussed or determined, as they are of a nature which may not occur on another trial. For the errors discussed the judgment is reversed and the cause is remanded.

Reversed and remanded.

Hurt, J., absent.