Rowley v. State , 106 Tex. Crim. 446 ( 1927 )

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

Appellant insists that his special charge No. 1 should have been given. We quote same:

“You are further instructed that if you believe from the evidence that the deceased and the defendant had a previous disagreement over the account claimed to be owing by the deceased to the defendant, and that prior to the homicide the deceased had threatened the defendant, or had made threatening gestures toward defendant, or had exhibited a knife, the defendant would not lose his right of self-defense by arming himself and seeking an interview with the deceased for the purpose of bringing about a peaceable adjustment of their affairs, and if the deceased and the witness Bell did some act which, viewed from the defendant’s standpoint, caused the defendant to believe that his life was in danger, or that he was about to suffer serious bodily injury at the hands of the deceased, or the witness Bell, and that he, so believing, shot and killed the deceased, or if you have a reasonable doubt upon this issue, then you will acquit the defendant.”

It is the rule that special charges must be given or refused in the form in which same are presented. Manifestly that part of this special charge which seeks to have the jury told that “If the deceased and the witness Bell did some act which, viewed from the defendant’s standpoint, caused the defendant to believe that his life was in danger * * * you will acquit the defendant,” is wrong. This instructs an acquittal if deceased and Bell, in an effort to protect their own lives against an unlawful assault by appellant, had done something which caused appellant to think his own life in danger. Same entirely omits reference to what may have brought about or caused the supposed act of deceased and witness Bell; also fails to place any limitation upon the acts and conduct of appellant which may have brought about or caused the supposed act of deceased and Bell. While appellant would have the right, under some circumstances, to arm himself and seek an interview with deceased, he would have no right to then and there conduct himself in such manner as to bring about a difficulty, or cause the deceased to make a demonstration, or an attack upon him, and then have the jury told unqualifiedly that because of such attack or demonstration on the part of deceased, appellant would have the right to take the life of deceased, and if he did so he should be acquitted. We think the special charge correctly refused.

Substantially the same defect exists in special charge No. 3, which sought to have the jury instructed that if they found and believed from the evidence that at the time the defendant entered the building in which the shooting took place “he did not intend to produce the occasion or difficulty between the deceased, the witness Bell and himself, and that by reason of some act then done on the part of the deceased, or the witness Bell, which, viewed from the defendant’s standpoint, reasonably produced in his mind fear of the loss of life, or serious bodily injury, etc., and that acting under such apprehension the defendant shot and killed the deceased, he would not be guilty of murder or manslaughter, but would be entitled to be acquitted; * * * or if you have a reasonable doubt on this issue, you will give the defendant the benefit of such doubt and acquit him.” Appellant’s guilt is not to be made to depend on his intent when he entered the shop of deceased. Regardless of such intention at that time, he may have changed his mind, and may have been guilty of such acts and conduct thereafter as caused the deceased to make an attack upon him, or as might have directly brought about the homicide. In other words, the jury must look to the whole' facts surrounding, the difficulty in deterfcnining what caused same and cannot be told that they must acquit the defendant upon his intent at a particular time antecedent to the actual difficulty.

The motion for rehearing will be overruled.

Overruled.