McSwain v. State

Broyles, C. J.

1. The charge of the court on the law of. mutual protection of parents and children, as set forth in section 74 of the Penal Code of 1910, was not error for the alleged reason that “it limited the right of defendant to protect himself and his son when other members of his family, including his wife, daughter, and other children, standing in a group with the son, were in equal danger with the son from the effort of the deceased to kill the defendant.” The defendant’s contention upon his trial, as shown by the testimony of his witnesses and by his statement to the jury, was that he shot and killed the deceased to save his own life. There was no evidence adduced that required a charge upon the law of mutual protection. And the accused in his statement to the jury declared: “I did it [killed the deceased] to save my own life. I had it to do to keep him from getting me, and he would have got more than one if he had started, if I had not been quicker than Jie was.” This statement clearly shows that the defendant contended that he killed the deceased to protect himself. The latter portion of his statement, to wit, “and he would have got more than one if he had started,” is a mere conclusion of the defendant. Moreover, even if the defendant’s statement had raised the question of mutual protection, that question not having been raised by the evidence, the failure of the court to charge thereon would not have been error in the absence of a timely written and appropriate request. No such request was presented. The charge given by the court upon the right of the accused to protect one of his sons was not required by the evidence, and certainly, under the facts of the case, was not prejudicial to the accused.

2. Under the facts in the case and the ruling in the preceding paragraph, the failure of the judge to charge section 75 of the Penal Code was not error.

3. The charge upon the law of mutual combat was authorized by the evidence and was not error for any reason assigned.

4. The verdict was supported by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.