Crenshaw v. State

• Citation: 85 S.W. 1147
• Parties: CRENSHAW v. STATE.
• Decision Date: 15 March 1905
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

85 S.W. 1147

CRENSHAW v. STATE.

Court of Criminal Appeals of Texas.

March 15, 1905.

Appeal from District Court, Anderson County; John J. Word, Judge.

Dan Crenshaw was convicted of murder, and appeals. Reversed.

N. B. Morris, B. H. Gardner, and Campbell & Sewell, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree; 25 years in the penitentiary being fixed as the punishment.

Peevy, a state's witness, testified to facts which made him an accomplice, and, under an agreement with the state, was to be relieved from punishment by turning state's evidence. The court charged the jury in this connection as follows: "You are instructed that the witness Dan Peevy was an accomplice, as that term is defined in the foregoing instructions; and you are further instructed that you cannot find the defendant guilty upon his testimony, unless you are satisfied that the same has been corroborated by other evidence tending to establish that the defendant did in fact commit the offense." The objections urged are that this charge is upon the weight of the evidence, and assumed the truth of Peevy's testimony. The effect of this charge, as contended, was that it instructed the jury to convict defendant, provided the testimony of the accomplice, Peevy, had been corroborated. In other words, this charge simply requires the jury to believe the accomplice testimony has been corroborated, and, if they so found, they could convict whether they believed his testimony was true or false. These exceptions are well taken. Bell v. State (Tex. Cr. App.) 47 S. W. 1012; Jones v. State (Tex. Cr. App.) 72 S. W. 845; Hart v. State (Tex. Cr. App.) 82 S. W. 652; Washington v. State (Tex. Cr. App.) 82 S. W. 653.

The charge on self-defense is criticised as being incorrect. In this connection the court charged the jury: "Homicide is justifiable and permitted by law when committed for the purpose of preventing the offense of murder, when the killing takes place under the following circumstances: (1) It must reasonably appear by the acts, or by words coupled with the acts, of the person killed, that it was the purpose and intent of such person to commit the offense of murder. (2) The killing must take place while the person killed was in the act of committing the offense of murder, or after some act done by him showing evidently an intent to commit such offense. Homicide is justifiable in the protection of the person against any other unlawful and violent attack besides one with intent to murder or to inflict serious bodily injury, and in such case all other means must be resorted to 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. The party who is unlawfully attacked is not bound to retreat in any event, in order to avoid the necessity of killing his assailant. It is not necessary to the right of self-defense that the danger should in fact exist. If it reasonably appears from the circumstances of the case that danger exists, the person threatened with such apparent danger has the same right to defend against it, and to the same extent, that he would...