120 S.W. 179 (Tex.Crim.App. 1909), Clark v. State

Citation:120 S.W. 179, 56 Tex.Crim. 293
Opinion Judge:[56 Tex.Crim. 294] RAMSEY, J.
Party Name:CLARK v. STATE.
Attorney:B. D. Shropshire and Hood & Shadle, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.
Judge Panel:BROOKS, J., absent.
Case Date:May 26, 1909
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas
 
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Page 179

120 S.W. 179 (Tex.Crim.App. 1909)

56 Tex.Crim. 293

CLARK

v.

STATE.

Court of Criminal Appeals of Texas

May 26, 1909

Appeal from District Court, Parker County; J. W. Patterson, Judge.

Stokes Clark was convicted of murder, and he appeals. Reversed and remanded.

Page 180

B. D. Shropshire and Hood & Shadle, for appellant.

F. J. McCord, Asst. Atty. Gen., for the State.

[56 Tex.Crim. 294] RAMSEY, J.

Appellant was indicted in the district court of Parker county, charged with the murder of Homer White. He was, on, to wit, November 18, 1908, convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of seven years. That he shot White and killed him in Weatherford, about the 4th day of February, 1908, is not denied. He rests his defense on the ground of self-defense, and the case involves some question of his right to resist an unlawful arrest and an arrest undertaken by means and force not reasonably necessary for that purpose. There were many issues in the case and it was in many of its aspects a case of difficulty, and many complex issues involved in it; but in respect to the charge of the court except in matters hereafter referred to, it is not, as we believe, subject to serious criticism.

1. Among the errors relied on for a reversal is the alleged error in the charge of the court, in the sixteenth paragraph of same, where, among other things, the jury are instructed as follows: "If you believe from the evidence, beyond a reasonable doubt, that the defendant, with a deadly weapon, or instrument reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion, without adequate cause, and not in defense of himself against an unlawful attack, reasonably producing a rational fear or expectation of death or serious bodily injury, with the intent to kill, did with a pistol, within the county of Parker and state of Texas, on or about the 4th day of February, 1908, shoot and thereby kill Homer White, as charged in the indictment, you will find him guilty of murder in the second degree, and so say in your verdict, and assess his punishment at confinement in the state penitentiary for any period that the jury may determine and state in their verdict, provided that it be for not less than five years." This charge has been held to be not error in the case of Waters v. State (Tex. Cr. App.) 114 S.W. 628, and in many cases decided since then. The same question is also raised in respect to the charge of the court on manslaughter in the twenty-third paragraph of same. There was, as we believe, no error in the court's instruction on this subject.

2. The court erred in not giving in charge to the jury the substance of article 676 of our Penal Code of 1895. This article is as follows: "When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapons or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury." In this case the weapon used by White was a pistol used as a firearm. In respect to the use of a deadly weapon it has been the uniform holding of this court, since the case of Kendall v. State, 8 Tex. App. 569, that the court must give in charge to the jury the [56 Tex.Crim. 295] substance of this article of our Penal Code. We have recently discussed this matter at great length in the case of Renow v. State (not yet officially reported) 120 S.W. 174. See, also, Jones v. State, 17 Tex.App. 602; King v. State, 13 Tex.App. 277; Cochran v. State, 28 Tex.App. 422, 13 S.W. 651; Word v. State, 30 Tex.App. 687, 18 S.W. 793; and Yardley v. State, 50 Tex. Cr. R. 644, 100 S.W. 399, 123 Am. St. Rep. 869.

3. Complaint is also made that the court failed to instruct the jury in connection with appellant's right of self-defense that he had the right to shoot the deceased, Homer White, as long as it reasonably appeared to him, looking at the situation from his standpoint, that his life was in danger, or that he was in danger of serious bodily injury at the hands of White. The evidence in brief showed that quite a number of shots were fired--indeed, that appellant and deceased emptied their six-shooters at each other, and that they continued to shoot as long as they...

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