Ben. W. Gilly v. The State, 15 Tex. Ct. App. 287

Willson, Judge. Homicide is permitted in the necessary defense of the person: First. When inflicted for the purpose of preventing the offense of murder, rape, robbery, maiming, disfiguring, or castration. (Penal Code, Art. 570.) Second.

When inflicted for the protection of the person against any other unlawful and violent attack. (Penal Code, Art. 572.) In either case, the party whose person is attacked is not bound to retreat in order to avoid the necessity of killing his assailant. (Penal Code, Art. 573.) Where the homicide is inflicted to prevent murder, rape, robbery, maiming, disfiguring, or castration, the slayer is not required to resort to any other means except killing his assailant to prevent the injury, but may kill at once. (Kendall v. The State, 8 Texas Ct. App., 569; Ainsworth v. The State, 8 Texas Ct. App., 532; Jordan v.

The State, 11 Texas Ct. App., 435; King v. The State, 13 Texas Ct. App., 277.) This rule applies also where the homicide is inflicted to prevent serious bodily injury. (Penal Code, Art. 574; Kendall v. The State, 8 Texas Ct. App., 569; Hill v. The State. 10 Texas Ct. App., 618.) If, in any case, the attack upon the person of an individual be such as produces a reasonable expectation or fear of death, or some serious bodily injury, the person so attacked may act promptly, and slay his adversary, and is not required to resort to other means to avoid the injury.

Where, however, the attack made, though it be unlawful and of a violent character., yet is not such as to produce a reasonable expectation or fear of death, or of serious bodily harm, then the party assailed must resort to all other means, except retreat, for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack; otherwise, the homicide will not be justiable. (Penal Code, Art. 572; Kendall v. The State, 8 Texas Ct. App., 569; Jordan v. The State, 11 Texas Ct.

App., 435.) We have adverted to the distinction made by the law between these two classes of self-defense, for the purpose of more particularly showing-that where the attack is made with a weapon, or by means or in a manner such as would be calculated to produce the result of murder, rape, robbery, disfiguring, maiming, or castration, or serious bodily injury which might result in either of the offenses named, the party assaulted may kill his assailant without resorting to any other means to avoid the injury; and the rule prescribed by

Article 572 of the Penal Code does not apply to such a case. It is objected, in this case, that the charge of the court upon self-defense is not in accordance with the law as we have above stated it. We are of the opinion that the charge fails to draw clearly and correctly the distinction between the two classes of self-defense, but applies the restrictions of

Article 572 to

Article 570 of the Penal Code,-so as to require the person assaulted, in either class of cases, to resort to all other means to avoid the injury, except that of retreat or killing the assailant. In this respect, we think, the otherwise excellent charge of the learned judge was abstractly erroneous. But no exceptions were made by defendant to the charge of the court when it was delivered to the jury, nor did the defendant request any additional instructions, or in any manner call the attention of the court to any defect or insufficiency in the charge at the time of the trial.

In his motion for a new trial, however, the defendant assigns as grounds for his motion, that the court failed to charge all the law of the case; failed to charge the law of manslaughter; erred in charging the law of self-defense, etc. Whatever errors or defects there may be in the charge, they a,re not sufficient to cause a reversal of the conviction, unless they be of that character, which, in our opinion, might have prejudiced the rights of the defendant upon the trial, the charge, as before stated, not having been excepted to on the trial. (Code Crim. Proc., Art. 685; Bishop v.

The State, 43 Texas, 390.) Opinion delivered December 14, 1883. We have carefully examined the evidence upon which the conviction in this case is based, and with reference to which the charge of the court was formed, and we are clear in our conclusion that there is no error in the charge of the court which could have resulted to the prejudice of the defendant. We think the charge of the court was more favorable to him than the evidence warranted. The evidence, as shown in the statement of facts, proved beyond all reasonable doubt that the homicide was murder in the first degree.

There was no room for even a probability that it was manslaughter, or even murder in the second degree, if or was there any evidence fairly raising, or tending to raise, the issue of self-defense. We think the learned judge had fully instructed the jury upon the law of the case when he had explained to them the law of murder in the first degree. We would not have reversed the judgment if he had omitted entirely to charge upon murder in the second degree and self-defense, because in our opinion the facts of the case as presented to us did not demand these charges.

It was favorable to the defendant, however, that such charges were given, and he has no cause to complain that he has had advantages accorded to him in his trial which he was not strictly entitled'to under the law. We have found in the record no material error, and, believing the conviction to be in due form of law and amply sustained by the evidence, and a just retribution for the deliberate murder committed by the defendant, the judgment is affirmed. Affirmed.