Martin v. State

Appellant renews complaint that the court did not sufficiently charge upon his right to act upon the hostile demonstration of either deceased or Jones. It is true the court did not in so many words instruct the jury that where there may be more than one assailant the party attacked may act upon the hostile demonstration of either, but it is not necessary that the court employ any particular words to convey information to the jury as to the principles of law applicable. One of the objections urged to paragraph 14 of the charge was:

"Because said charge wholly ignores the fact that Mack Jones was acting with said Ed Barnes and was advancing on defendant with a drawn revolver, and nowhere in said charge gives the defendant the right to act, as he viewed acts and conduct of both said parties, from his standpoint at the time."

In taking note of this objection the court appends the following statement:

"Refused, except in so far as paragraphs 10-11 and 14 of the original have been changed by the court, in conforming in part with the objections above mentioned."

It is fair to assume that paragraph 14 was silent upon the question of Jones' acting with deceased at the time the foregoing objection was presented. It is now apparent from said paragraph that the court corrected it to meet the objection, for there now appears in such paragraph the language quoted in our original opinion which did inform the jury that if deceased and Jones or either of them acted in such manner as caused appellant to believe that deceased was about to make an assault upon him, appellant had a right to act. If appellant was not satisfied with the change he ought to have made it known to the trial court by additional objections after the charge was amended. Such is the positive requirement of Art. 660, C. C. P., which has been given effect in Hall v. State, 97 Tex. Crim. 150,260 S.W. 878; Jackson v. State, 103 Tex. Crim. 252,280 S.W. 808, and Butler v. State, 105 Tex. Crim. 228,288 S.W. 218. In explanations attached to some of the bills of exception in the record the court makes it clear that the change made in paragraph 14 of the charge was in response to the criticism urged. In the absence of further specific written objections to the amended charge appellant is in no position to complain. But aside from this, considering the charge in its entirety, we are confirmed in the view expressed in our original opinion that no harm could have come to appellant from misapprehension upon the jury's part as to the law permitting appellant to act in self-defense based upon the conduct of either deceased or Jones or that of both of them.

The motion for rehearing is overruled.

Overruled.