Mattison v. State , 54 Tex. Crim. 514 ( 1908 )

Appellant was convicted of assault with intent to murder, and his punishment assessed at two years confinement in the penitentiary.

The first ground of the motion for a new trial complains that the court committed error in paragraphs eighteen, nineteen and twenty of his charge in submitting the law of self-defense in said paragraphs, because it was on an issue not raised by the evidence, and was calculated to mislead and confuse the minds of the jury, and prejudice and injure the rights of defendant in this, to wit: "The only defense relied on by defendant was the defense of an alibi, and aggravated assault in case the jury found against him on his defense of alibi, because the issue of aggravated assault was raised by the testimony introduced on the part of the State. And in submitting the law of self-defense in said paragraphs, the court places the defendant in the position of relying on two inconsistent, conflicting and antagonistic defenses, one of which was not asserted by the defendant or raised by the evidence. After a careful review of the testimony in this case we find appellant's position correct. The prosecuting witness was struck with an axe one night at a dance or festival. He did not know, according to the testimony, who struck him. Whoever struck him, according to the State's evidence, committed an assault with intent to murder, or aggravated assault. The appellant and all of his testimony shows that he was not at the place where the assault was committed, or at least was not in a position to commit it. In other words, the assault was committed on the gallery. The evidence from the defense standpoint, shows that all the while, at the time of the assault, appellant was in the house talking to the owner of the premises, having been pushed into the house a short while before the prosecuting witness was struck with the axe. The court charges on alibi and also charges on self-defense. Of course, if a witness had sworn that appellant struck the prosecuting witness with an axe, under circumstances indicating self-defense, and the appellant himself had sworn that he was at another and different place, then the two defenses, although contradictory, ought to have been charged to the jury, but no witness in this case swears that appellant struck the prosecuting witness in self-defense, nor can we find any circumstance in the record to justify the charge. It is true, after the prosecuting witness was struck and thereby rendered senseless, after recovering consciousness, on his way to the doctor, he took out his pistol, flourished it around, and wanted to know who struck him, indicating that he desired to do violence to the one who did it, but this was after the blow had been given and the prosecuting witness was on his way to the doctor. We accordingly hold that the court erred in charging upon the law of self-defense, and minifying the real defense of appellant, and inferentially stating that there was evidence indicating that he did assault the prosecuting witness, but did so in self-defense. On trial for assault to murder, where defendant as a witness swore to an alibi and no one swore to any other defense for him, it is error for the court to charge on self-defense. See Anderson v. State, 34 Tex. Crim. 546 [34 Tex. Crim. 546]. The charge outside of the error pointed out is correct. But for the error pointed out, the judgment is reversed and the cause is remanded.

Reversed and remanded.