DocketNumber: No. 1543
Citation Numbers: 15 Tex. Ct. App. 125
Judges: Willson
Filed Date: 11/24/1883
Status: Precedential
Modified Date: 9/3/2021
This conviction is for manslaughter, and the punishment assessed is two years confinement in the penitentiary. The indictment charges-the murder of .one Robert Linson.
That our decision of the questions presented in the record may be properly understood, it is necessary that we should summarize the facts in evidence:
Robert Linson was shot and killed in the town of Jewett, Leon county, on the twenty-fifth of March, 1882. Linson, who was a small man, was attacked by the defendant, who was a large man, without provocation and in a violent manner. An effort was made to separate them, when Swan Hardin prevented their separation. Defendant got Linson down on the ground, and beat him severely, and kicked and spurred him on the head, until he was pulled away. After Linson got loose from defendantj and when defendant was again advancing upon him, he,
How, upon this state óf facts what is the law? We will state our view of it as applicable to the case:
1. If the defendant was acting together with the Hardins, or either of them, in provoking a contest with Linson, with the purpose and intent of killing said Linson, or doing him serious injury, and in pursuance of this common design and purpose the Hardins, or either of them, the defendant being present, shot and killed Linson, then the defendant would be guilty as a principal in the murder, as much so as if he had fired the fatal shot.
2, If the Hardins were justifiable in killing Linson, the defendant would not be guilty of the homicide. Thus, it Swan Hardin, in good faith, without the purpose or intent to kill Lin-son or do him serious injury, advanced upon Linson for the pur*138 pose of arresting him for a felony or breach of the peace committed within his view, and Linson fired upon him, and Swan Hardin, or his father or brother, or all of them together, fired upon and killed Linson in the necessary defense of the life of Swan Hardin, then this would be justifiable homicide, and neither the Hardins nor the defendant would be guilty of unlawful killing.
3. If the difficulty between Linson and defendant had terminated, and the Hardins, without the knowledge, advice, concurrence, aid and encouragement of the defendant, independently, of their own accord, and to" accomplish a purpose and intent of their own, shot and killed Linson, the defendant would not be responsible for their acts, although he was himself seeking to kill the deceased unlawfully.
4. If the defendant attempted to shoot the deceased, with intent to kill him, and in such attempt was actuated by malice aforethought, and under circumstances in which, if the death of Linson had resulted, the homicide would have been murder, and the defendant was prevented from any cause from effecting his purpose, than he would be guilty of assault with intent to murder.
5. There is no evidence in the case which would warrant a chargé or sustain a conviction for manslaughter, viewing and construing the facts fairly and reasonably.
A,voluminous charge was given to the jury by the learned trial judge, which covers thirty-eight pages of the transcript. It contains instructions up >n several issues which are in no manner presented by the evidence in the case, and which could only tend to confuse and mislead the jury. We shall not pause to point out these objectionable instructions in detail. It was doubtless the object of the learned judge to give to the jury all the law applicable to the evidence in the case; but. in his anxiety to do this, we think he submitted several issues not raised by the facts in proof. On the other hand, he failed to instruct the jury fully and correctly upon the two propositions stated in paragraphs 2 and 3 of this opinion; which in our judgment are vital issues in the case, and are fairly presented by the'evidence. Special charges upon these issues were requested by the defendant and refused by the court, and the action of the court in refusing them was properly excepted to.
Numerous and specific exceptions were made to the charge of the court as given to the jury, and are presented for our con
Reversed and remanded.