Holmes v. Holmes ( 1979 )

DIES, Chief Justice.

Two brothers, A. J. (“Cracky Lee”) and Emerson Holmes, had trouble over jointly owned “heired” land and timber cutting, and Cracky Lee shot Emerson several times. Emerson, as plaintiff below, sued Cracky Lee, defendant below, in the District Court of Newton County and, after a jury trial, received a judgment against Cracky Lee for $10,000, from which the latter brings this review.

The jury found that Crackey Lee intentionally shot his brother, plaintiff. Defendant, Cracky Lee, insists the court below should have defined “intentional” even though there is no contention the shooting was accidental.

Tex.R.Civ.P. 277 requires “ . the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict . .” No definition is required for a commonly used term. G. Hodges, Special Issue Submission in Texas § 13 at 37 (1959). See Pritchett v. Highway Insurance Underwriters, 158 Tex. 116, 309 S.W.2d 46, 49 (1958); Union Oil Company of California v. Richard, 536 S.W.2d 955 (Tex.Civ.App.— Beaumont 1975, writ ref’d n. r. e.); Gulf Insurance Co. v. Vela, 361 S.W.2d 904 (Tex.Civ.App. — Austin 1962, writ ref’d n. r. e.).

Recently the Texas Supreme Court has noted that the term “unreasonably dangerous” in a products liability case need not require a definition. Turner v. General Motors Corp., Tex., 584 S.W.2d 844 (1979).

We feel “intentional” is a common term, and its definition is unnecessary to enable the jury to reach a verdict. This point is overruled.

Cracky Lee also insists the trial court’s definition of “self defense” was erroneous or at least incomplete. Herewith follows the trial court’s definition:

“ . . .a person acts in ‘self defense’ when he uses violence to resist violence proffered to him or where the person assaulted does or attempts to do an act which places the person of the one charged with assault in jeopardy, or which reasonably creates the belief in the mind of the assaulting party that he is in danger. In order to avail himself of the right of self-defense, the person charged with assault must not only honestly believe himself to be in immediate danger, but have reasonable grounds for such belief; and, in resisting force with force, he must use only that degree of force which is reasonably necessary to repel a threatened violence.”

Cracky Lee wants the jury informed the danger may be apparent viewed from his standpoint; and that he was not bound to retreat to avoid killing Emerson.

It is true that self defense in Texas is the same in civil as well as criminal cases with this important exception. The burden of proof in a criminal case is “beyond a reasonable doubt”; while in a civil case it is by a “preponderance of the evidence.” See Rhoden v. Booth, 344 S.W.2d 481, 485 (Tex.Civ.App. — Dallas 1961, writ ref’d n. r. e.). The definition given by the court in the instant case fairly informs the jury that Cracky Lee’s belief of danger, if reasonable, was sufficient, and we think it is a sufficient definition particularly in a civil suit. Under the facts of this case, we see no necessity to inform the jury Cracky Lee was not bound to retreat to avoid the necessity of killing Emerson. Cracky Lee took the position he was on a crutch and couldn’t retreat. The undisputed evidence here shows that Emerson, not Cracky Lee, was in retreat and was shot from behind. These points are overruled.

Cracky Lee next contends the jury’s answers to Special Issues Nos. 1 and 3 were against the great weight and preponderance of the evidence. This directs us to all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

In Special Issue No. 1, the jury found that Cracky Lee shot his brother intentionally, and in Special Issue No. 3 they failed to find he was acting in self defense.

We have carefully read this entire record, and, while of course we recognize Cracky Lee made these contentions to the jury, suffice it to say that the jury’s answers are supported by abundant probative evidence. These points are overruled.

Finally Cracky Lee complains that the trial court allowed Emerson’s sister, Mrs. Margaret Tukes, to testify after having been put under the Rule (Tex.R.Civ.P. 267), when she was shown to have remained in the courtroom. Where the rule is breached, the court may determine whether or not to permit the witness to testify, and the court’s ruling will not be upset unless there is a showing of manifest abuse. Triton Oil & Gas Corp. v. Moran Drilling Co., 509 S.W.2d 678, 685 (Tex.Civ.App. — Fort Worth 1974, writ ref’d n. r. e.). See 3 McDonald, Texas Civil Practice § 11.17.3 at 186 (1970). No such showing is made here.

All of appellant’s points are overruled, and the judgment of the trial court is affirmed.

AFFIRMED.