Barnes v. State

Appellant insists that he was entitled to a charge on self-defense from the standpoint of an attempted illegal arrest.

Under the facts we can not agree with such contention. The jury were told if they found appellant had not either alone or acting with one Lemley committed the offense of arson, and that the officers fired at or toward them that they would have the right of self-defense, and that if appellant fired at the officers under such circumstances they would acquit him. This was all that appellant was entitled to under Article 1222, P. C. McKee v. State, 118 Tex.Crim. Rep., 42 S.W.2d 77; Williams v. State, 120 Tex.Crim. Rep., 48 S.W.2d 304. If appellant and Lemley had committed, or were engaged in committing, an offense which was a misdemeanor there would be ground for appellant's contention. In Reed v. State, 11 Texas Crim. App. 509, cited by appellant, this is made clear in the following language: "If he was engaged in the commission of a felony, and, to prevent its commission, the party seeing it or about to be injured thereby makes a violent assault upon him, calculated to produce death or serious bodily harm, and in resisting such attack he slay his assailant, the law would impute the original wrong to the homicide and make it murder. But if the original wrong was or would have been a misdemeanor, then the homicide growing out of or occasioned by it, through in self-defense from an assault made upon him, would be manslaughter under the law."

We have considered the other matters presented in the motion for rehearing regarding criticism of certain portions of the court's instructions to the jury. When the charge is taken in its entirety we believe the criticisms are not meritorious.

The motion for rehearing is overruled.