Williams v. State , 22 Tex. Ct. App. 497 ( 1886 )

Willson, Judge.

I. The indictment is in the usual form, and the court did not err in overruling exceptions to it. (Willson’s Cr. Forms, sec. 357, p. 161, and cases there cited.)

II. It is the well settled law of this State that when any unlawful and violent attack is made by one person upon another, which reasonably indicates to the person attacked that serious bodily injury is about to be inflicted upon him, he may kill the assailant at once, without resorting to other means for the prevention of such threatened injury. (Hunnicutt v. The State, 20 Texas Ct. App., 642, and cases therein cited; Lee v. The State, 21 Texas Ct. App., 241). In this case the charge of the court upon the issue of self defense restricts the right of the defendant to kill his assailant, without first resorting to all other means except retreat to prevent the threatened injury, to the prevention of murder, maiming or disfiguring, giving him no such right where the injury threatened might have been other serious bodily injury, until he had first resorted to all other means, except retreat, to prevent such other serious bodily injury. In this respect the charge is defective.

III. It was in proof by two witnesses that prior to the alleged assault by defendant upon Gassaway, and on the same day, said Gassaway had threatened to kill the defendant, and that said threat had, prior to said alleged assault, been communicated to defendant. There was also testimony that at the time of the difficulty, and before the commission of the alleged assault, Gassaway attempted to draw a pistol with which to shoot the defendant, and thus execute said threat. In view of this evidence the court should have charged the law relating to threats, and it was material error to omit to do so. (Sims v. The State, 9 Texas Ct. App., 586.)

IV. Other objections than those above noticed are urged to the charge of the court by counsel for defenda-nt, but the errors complained of are not of a character deemed material, and, in the absence of a bill of exception specifically pointing out such errors, we are not called upon to notice them. There is in the record a general bill of exception to the entire charge, specifying no error, Such a bill is entitled to no consideration. (Smith v. the State, ante, 316.)

V. It was not error to admit the testimony in regard to the flight of the defendant from the State after he was indicted, and of his effort to obtain false testimony to be used on his trial. Such testimony is always admissible in cases of circumstantial evidence, and we know of no rule of law which would exclude' it in any case, though the reason for its admission in a case like this, where the evidence relied upon by the prosecution to establish the guilt of defendant is direct, is not so apparent as in a case where the evidence is all circumstantial. (Whart. Crim. Ev., sec. 750.)

Because of the errors in the charge of the court which we have mentioned as material, and which might have prejudiced defendant’s rights, the judgment is reversed and the cause is remanded.

Opinion delivered December 4, 1886.

Reversed and remanded.