DocketNumber： No. 7604.
Citation Numbers： 253 S.W. 519, 95 Tex. Crim. 209, 1923 Tex. Crim. App. LEXIS 555
Judges： Lattimore
Filed Date： 4/11/1923
Status： Precedential
Modified Date： 10/19/2024
The learned trial judge in charging on self-defense in this case told the jury that a homicide was permitted by law when inflicted for the purpose of preventing the offense of murder or the infliction of serious bodily injury, and that if they found that appellant assaulted Clark, the injured party, but that the latter had made an attack upon appellant which from the manner and character of it caused him to have a reasonable fear or expectation of death or serious bodily injury, and that acting under such expectation or fear he assaulted Clark, he should be acquitted. This was the only charge on self-defense. Exception was reserved to this charge upon the ground that the evidence raised the issue of aggravated assault by appellant, and that such issue was submitted in the charge, but the jury were not instructed as to appellant's right to defend against an attack on the part of Clark not of sufficient gravity to evidence a purpose to kill or seriously injure appellant. In some way this exception of appellant escaped our attention on original consideration of the case. Appellant was charged with assault to murder and on his trial testified that just before he shot at Clark, the latter threw two bricks at him, one of which struck him and caused pain and blood-shed. This court seems to have uniformly held that one charged with any grade of assault may rely for justification upon self-defense against an unlawful attack, even though such attack does not amount to an effort to inflict death or serious bodily injury. Hix v. State, 51 Tex.Crim. Rep.; Smith v. State,
The motion for rehearing is granted, the affirmance is set aside, and the judgment is now reversed and the cause remanded.
Reversed and remanded.