Coultress v. State

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

Appellant insists that the trial court erred in his charge in not submitting self-defense based on apparent danger as viewed from the standpoint of the appellant. Paragraph ten of the court’s charge is as follows:

“A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted on a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and in such case, the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.”

In paragraph 11 the court told the jury that if from the evidence they found that appellant killed Salinas, but that at the time of so doing deceased was making an attack upon him, which from the manner and character of it, etc., caused appellant to have a reasonable expectation or fear of death or serious bodily injury, etc., they should acquit him. Examining the statement of facts, we note that appellant’s witness Casias, an eye-witness, testified that following an exchange of words between appellant and deceased, “Then the deceased jerked his hand out of Louis’ hand and pulled out a gun from his shirt; he pulled it out and fired. He fired at the defendant, I guess. The defendant shoved Trovar with his left hand a step or two and went for his gun, too, and pulled out his gun and fired.” There seems no issue made of the fact that Salinas had a pistol, nor is there any controversy over the proposition that Salinas had threatened to kill appellant prior to the-time of this homicide, and that the fact of such threats had been communicated 'no appellant. The court gave a special charge telling the jury mat if they found that prior to the homicide defendant had been informed that deceased had threatened appellant’s life, and further that at the time appellant fired the fatal shot, viewing the facts and circumstances from his standpoint, it reasonably appeared to him that Salinas, by some act then done manifested an immediate intention to execute the threat, if any, of which defendant had been informed, the jury should acquit, although they might find that deceased made no threats against defendant, and that he was in no real danger at the time he fired said shot. We are not impressed with any belief that the jury were left without sufficient guide in the instructions of the court, as to the rights of appellant, both from the standpoint of appearance of danger as well as of real danger. If the evidence supports any theory regarding danger to appellant at the time he shot Salinas, it was from an actual attack and not from an apparent attack only. As stated above, Salinas had a pistol and drew it in the melee and fired it. The state witnesses insisted that he only drew it after he was shot by appellant and not before.

Believing the case was properly decided in our original opinion, the motion for rehearing will be overruled.

Overruled.

Morrow, P. J., not sitting.