Gillmore v. State ( 1872 )

Ogden, J.

It is the duty of the court, on the trial of all cases of felony, to instruct the jury as to the law applicable to the facts of the case before them; but this duty must of necessity be exercised and performed in a great decree according to the best judgment and sound discretion of the court. It cannot be expected that a court in a simple charge to a jury, will attempt to instruct them in every branch or principle of law which might be applied to any particular case, or state of facts. But it is rather the duty of the court, in its discretion, to so charge the jury in regard to the law of a case, that they may thereby be aided in forming a correct legal and just verdict. If the court should charge a jury erroneously, that error would be corrected on an appeal; but the law has, as a general thing, left it to the sound discretion of the court to determine the character, and particularly the extent of the charge to be given. And therefore, in O’Connell v. The State, 18 Texas, 363, this court said : “ But it must be observed that the mere omission “ to give instructions is not error. The court is not hound in “ any case to give instructions not asked for by the party. If “ the charge of the court was not satisfactory, it was the right “ of the defendant or his counsel to ask such instructions as he “ thought proper, and if he omitted to ask particular instruc- “ tions, he cannot assign as error the omission of the court to “ give them.” This authority most effectually disposes of appellant’s second and third assignments, as upon the trial he asked no instructions, and now complains of the omission of the court to give instructions not asked or even suggested.

The fourth assignment is too general to require special notice, particularly as we have been unable to discover any error in that portion of the charge indicated, of which the defendant had a right to complain, or which could have misled the jury into finding the verdict they did. ¡Neither are we willing to say that the verdict of the jury was contrary to the evidence. The evidence shows most clearly that there was a deadly enmity between the defendant and deceased. They were, on the fatal occasion, both armed apparently for a deadly conflict, and the defendant commenced the difficulty by rudely and threateningly accosting the deceased, while passing his house in a way to avoid a conflict, and then both advanced toward each other, with the evident intent of slaying his adversary.

The evidence establishes the fact that either party might very well have avoided the difficulty in which the deceased was killed, without danger or disgrace ; and in view of all the facts of the case, the jury came to the conclusion that the defendant was guilty of murder in the second degree, and we are not prepared to say that their verdict was unsupported by the evidence. And for the reasons here given, we are of the opinion that the court did not err in overruling defendant’s motion for a new trial.

We are unable to discover any error for which the judgment should be reversed, and it is therefore affirmed.

Affirmed.