Bowick v. State

Luke, J.

1. Where one charged with the offense of assault with intent to murder by shooting another supports in part, by the sworn testimony and by his statement, the defense that at the time of the shooting the person shot had unlawfully assaulted him and had him down upon an automobile seat, choking him, manifestly intending and endeavoring, as he believed, to choke him to death, and that he shot only to prevent such threatened homicide, evidence showing disparity in the size and strength of the two, the defendant weighing one hundred and sixty pounds and the person shot weighing two hundred and eighty pounds, in connection with the other facts and circumstances which were such as to authorize a finding by the jury that the fears of the defendant that his life was in danger were the fears of a reasonable man, it was error for the court to restrict the defense of justification (Penal Code, § 70) for such shooting to the prevention of a “like or similar assault” upon the defendant by the person shot. The failure of the court to instruct the jury as to the doctrine of reasonable fears, as here complained of, is such error as to require the grant of a new trial.

2. The other errors assigned are either without merit or are such as will not likely recur upon another trial. For the reason pointed out the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., ooneur.