Boaz v. State

Appellant insists in his motion for rehearing that the trial court erred in the 14th and 17th paragraphs of his charge in shifting the burden of proof on the defensive issues, and that these matters were sufficiently pointed out by the special charges Numbers five and eleven, which were refused, and that our opinion heretofore rendered is erroneous.

No objection is made now to the 14th and 17th paragraphs, except that they should have concluded with a statement "or if you have a reasonable doubt thereof." Without going into a discussion of the many cases cited by appellant in his brief, we desire to revert to the acts of the Legislature in 1913, Article 743, Vernon's C.C.P. No exception was presented to the court's charge specifically pointing out an omission in the particular now complained of, and while the special charges requested contained a proper clause with reference to the "reasonable doubt" as applied to the defensive issues, yet, there was nothing in the special charges, or in any objection to the main charge to pertinently call the court's attention to the matter now urged as error. The last clause in Art. 743 reads: "And all objections to the charge, and on account of refusal or modification of special charges shall be made at the time of the trial." If what is now urged as such a serious objection was at the time of the trial overlooked by the able attorneys representing appellant, is it likely any great harm befell appellant by reason thereof? The jurors know very well what the main issues in the case were, and it is not to be presumed by this court that they indulged in the refinement of analysis in the consideration of the case as do attorneys in discussion of legal propositions. For the court to hold that the requesting of a special instruction, which the trial court could legitimately consider as a substantial repetition of his main charge, can take the place of an objection which should pertinently point out the matter complained of would virtually work a repeal of the statute. We do not desire to be understood as holding that where the special charge goes to some substantial matter, it would not in some cases be erroneous to refuse it, even though no objection was presented because of its omission from the main charge; yet, where the complaint only goes to the omission of a few words, we feel that in justice to the trial courts, and to make effective the law referred to, objectionable omission should be pointed out by exception then made. The case of Walker v. State, 229 S.W. Rep., 527, presents very much the same situation, and sustains what we have written.

In the brief and argument upon rehearing we are referred to Johnson v. State, 29 Texas Crim. App., 150, and the line of authorities following that case, as laying down a more correct rule than the one announced in Powell's case, 28 Texas Crim. App., 398, and others referred to in our original opinion. Perhaps we did not make our meaning clear. Just preceding the reference to the Powell case this language was used: "We find no exception to the charge upon the ground that the law of reasonable doubt was not sufficiently charged on," and then follows a statement in which we were inaccurate, to the effect that the special charges requested were no more definite upon the subject of "reasonable doubt" than was the main charge. What we were undertaking to say was, that in the absence of an exception pointedly calling the court's attention to an omission as to "reasonable doubt" applied to each defensive issue, the Powell case announces a correct rule.

Appellant requested the following special instruction: "You are instructed that, in passing upon the issues in this case, that it is your duty to place yourselves as nearly as you can in the place of defendant at the time of the homicide, and to view all the attendant facts and circumstances as they reasonably appeared to him from his standpoint, at the time, and not as they may appear to you now." We do not think it was necessary to submit this charge. The court had already told the jury that "it was not necessary that there should be actual danger, as a person has the right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time."

We have carefully examined the other grounds urged in support of the motion for rehearing. They were all considered and discussed in the original opinion, and we believe correctly disposed of.

While we might have reached a somewhat different verdict had we occupied the place of jurors, yet passing upon the case in the light of the record, the judgment must be sustained, and the motion for rehearing is overruled.

Overruled.