Barron v. State , 23 Tex. Ct. App. 462 ( 1887 )

White, Presiding Judge.

Appellant and his father,W. F. Barron, were jointly indicted and jointly tried for the murder of W. W. Walker. The trial resulted in the acquittal of W. F. Barron, the father, and the conviction of this appellant of manslaughter, with punishment affixed at two years in the penitentiary.

At the trial, the State, over objection of this appellant, was permitted to introduce evidence of threats made by W. F. Barron against deceased and other members of his family, when this defendant was not present. When appellant’s objection to this evidence was overruled, the court promised to limit and control the same as to this appellant in the charge to the jury. This was not done, and the failure to do so is manifest error.

Two special instructions requested for appellant were refused by the court, because, as stated, they were substantially embraced in the general charge. This may be so with reference to the first of these instructions, but we do not think that the phase of the case, as presented in the second, is to be found in the general charge; and, if so, it certainly is not presented in as plain, forcible, pertinent and affirmative a manner as in said second instruction, which reads as follows: “Although the deceased, W. W. Walker, may have intended no violence to the defendants, yet, if at the time he was killed he was approaching the defendants in company with his sons, and they, his sons, were making an unlawful and violent attack upon defendants or either of them, such as produced in their minds a reasonable apprehension that the lives of them or either of them, was endangered by such attack, or that thereby serious bodily injury was about to be inflicted upon them or either of them, and defendants or either of them fired upon deceased, W. W. Walker, and killed him, not knowing his innocent intention, but believing he was acting and participating with his sons in such unlawful and violent attack, then such killing would be justifiable, and the party or parties doing such killing would not be guilty of any offense.”

Opinion delivered June 8, 1887.

The proposition embraced in his instruction was made most important by certain testimony adduced by the State, going to show that deceased, when killed, had gone to the place where he was killed to prevent or stop the difficulty between his sons and the Barrens, and that, at the instant he was shot, his hands were elevated in front towards the Barrens, as if imploring them to desist from the shooting. It was error to decline and refuse to give this instruction in charge to the jury, in view of the facts in the case.

Several interesting questions are made in the record with regard to the special venire; and one of the grounds of the motion for new trial was to enable this appellant to have the testimony of W. F. Barron, his codefendant, whose testimony could not be had upon this trial, but who, having been acquitted, could testify on another trial to facts most material to this defendant. (Helm v. The State, 20 Texas Ct. App., 41.) These questions it is unnecessary for us to discuss, for they can not arise upon another trial. For the errors we have above pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.