McCoy v. State

In his motion appellant presents three grounds upon which he seeks a rehearing. The first is that the evidence is wholly insufficient to warrant and sustain his conviction. After a most careful review of the testimony, we remain of the opinion that the evidence is sufficient to support the jury's conclusion of appellant's guilt. His second contention is that the court in his charge on self defense failed to instruct the jury that if the deceased by his acts, coupled with hiswords, if any, reasonably induced the defendant to believe that the deceased was about to attack him (the defendant) with a knife, etc., to acquit him. His contention seems to be that the court's failure to so charge was a limitation on his right of self-defense. Had appellant addressed an exception to the court's charge and specifically pointed out the alleged error, he would have some basis for his contention; but this he did not do. He merely requested a special charge which embodied the omission in the court's main charge on "acts coupled with his words." This has been held by this Court not to be sufficient. See Boaz v. State, 231 S.W. 790; Parker v. State,261 S.W. 782; Banton v. State, 46 S.W.2d 703, and authorities there cited. If the court had not given any instruction at all on the subject then a special charge would have been sufficient, but in the case at bar, the court gave an instruction thereon, not however, as full as that covered in the special charge. There was nothing in the specially requested charge which distinctly pointed out the omission. To hold otherwise would be in effect to nullify the provisions of Art. 658 Cow. C. P. requiring the defendant to present his objection to the court's charge in writing, distinctly specifying each grounds of objection.

Appellant's third and last contention is that the court erred in instructing the jury that "if the deceased was making or was about to make an attack upon the defendant with an open knife * * * and by the use of said knife was attempting to commit murder, maiming, disfiguring or castration on the person of the defendant, etc., then it is presumed that the deceased intended to inflict such injury upon the defendant." While a charge should apply the law to the facts of the particular case, yet in the absence of an objection addressed thereto prior to the time the same is submitted to the jury, the presumption obtains that appellant was satisfied with the instruction.

The motion for a rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.