Villareal v. State , 130 Tex. Crim. 270 ( 1936 )

The trial court gave the following charge on self-defense: "If from the evidence you believe the defendant, Pedro Villareal, killed the said Augustine Salas, but you further believe that at the time of so doing the deceased, Augustine Salas or his brother Ignacio Salas, had made or were making an attack on him the said Pedro Villareal, which, from the manner and character of it, and the relative strength of said parties, and the defendant's knowledge of the character and disposition of the deceased Augustine Salas and his brother, Ignacio Salas, caused him the said Pedro Villareal, to have a reasonable expectation or fear of death or serious bodily injury at the hands of said deceased and his said brother, or either of them, and that acting under such reasonable expectation or fear, the said Pedro Villareal killed the said Augustine Salas, then you will acquit him; and if the deceased or his brother, Ignacio Salas, was armed with a pistol at the time deceased was killed, and either or both of them were making an attack on defendant then the law presumes that the said deceased, Augustine Salas, and his brother, Ignacio Salas, intended to murder or to inflict serious bodily injury upon him the defendant."

By written objection to the charge appellant complained because the doctrine of "reasonable doubt" was not given in immediate connection with the quoted instruction. Immediately following the foregoing — it appearing in the transcript as another paragraph of the charge — and still instructing upon the law of self-defense the court charged as follows: "Evidence has been offered in this case by the defendant to the effect that the deceased, Augustine Salas, and his brother, Ignacio Salas, were armed with pistols and were making an attack on him, the defendant at the time of the killing of deceased by the defendant; in this connection you are charged that if you find from the evidence that the said Augustine Salas and his brother, Ignacio Salas, were so armed with pistols at the time of the killing and were making an attack on the defendant, or if it appeared to the defendant at the time that either of them were so doing, viewed solely and alone from his, the defendant's standpoint, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty."

In his motion for rehearing appellant argues that the omission of "reasonable doubt" from the first part of the quoted charge on self-defense was fatal thereto under the holding in Regittano v. State, 96 Tex.Crim. Rep.,247 S.W. 906, and cases therein cited. It is further contended by appellant that the presence of "reasonable doubt" in the second part of the quoted charge does not remedy the omission thereof from the first part, and that the two instructions are antagonistic. After a careful re-examination of the facts and the charge in its entirety we are not able to agree with appellant in the propositions urged. It is well understood that the court's instructions must be taken as a whole, and that although the court may not respond to certain exceptions presented in writing, and that his failure to do so may present error, yet, before such error will demand reversal it must be such as was "calculated to injure the rights of the defendant." See Art. 666, C. C. P. (Old Art. 743); Williamson v. State,74 Tex. Crim. 289, 167 S.W. 360; Aldridge v. State,101 Tex. Crim. 642, 276 S.W. 256; Andrews v. State,101 Tex. Crim. 261, 275 S.W. 1024. The State's case shows that appellant returned to the store operated by deceased's brother and made an unprovoked attack upon deceased by shooting him; appellant's defense was that he returned to the store for the purpose of advising deceased's brother that appellant did not want any trouble, he not knowing at the time that deceased was there, and that deceased began firing at appellant with a pistol before he got to the store, and that both deceased and his brother were shooting at him. If appellant had any self-defense it was upon his claim that the parties were shooting at him. Upon his specific defense, and the only one presented by the evidence, the trial court gave him "reasonable doubt" in connection with the defensive charge. We have been unable to bring ourselves to believe that any possible injury could have resulted to appellant from the omission complained of.

The motion for rehearing is overruled.

Overruled.