Franklin v. State

• Decision Date: 27 March 1895
• Citation: 30 S.W. 231
• Parties: FRANKLIN v. STATE.
• Court: Texas Court of Criminal Appeals

30 S.W. 231

FRANKLIN v.STATE.

Court of Criminal Appeals of Texas.

March 27, 1895.

Appeal from district court, Bexar county; G. H. Noonan, Judge.

Albert Franklin was convicted of murder, and appeals.Reversed.

Mann Trice, for the State.

HURT, P. J.

This is an appeal from a conviction of murder of the second degree, wherein the penalty was assessed at 50 years in the penitentiary.This is the second appeal in this case.The former appeal is reported in 30 Tex. App. 628, 18 S. W. 468.The evidence is there set out in full, and, being in the main the same upon this appeal, it is not deemed necessary to produce it here.Upon the question of self-defense the court charged the jury as follows: "A party may have a perfect right of self-defense though he may not be entirely free from blame or wrong in the transaction.If the blamable or wrongful act was not intended to produce the occasion, nor an act which was, under the circumstances, reasonably calculated to produce the occasion, nor provoke the difficulty, then the right of self-defense would be complete, though the act be not blameless.But you are further charged that a party cannot avail himself of a necessity which he has knowingly and willfully brought upon himself.Whenever a party, by his own wrongful act, produces a condition of things wherein it becomes necessary for his safety that he should take life or do serious bodily harm, the law imputes to him his own wrong, and its consequences to the extent that they may be and should be considered in determining the grade of his offense, if any, which, but for such acts, would never have been occasioned.How far and to what extent he will be excused or excusable in law depends upon the nature and character of the acthe was committing, which produced the necessity that he should defend himself.When his own original act was in violation of the law, then the law takes that fact into consideration in limiting his right of self-defense and resistance while in the perpetration of such unlawful act."These abstractions, while correct, are too general, and are wanting in specification.They are nowhere applied to the facts of the case, nor are the jury informed of the legal effect and consequences of such acts.The jury are left to make their own application of these abstract propositions, and to give to them such legal consequences as they may deem them to possess.It is not without difficulty that the judicial and trained mind can make their proper application, and it is not to be expected that the jury would correctly apply them.The law should have been applied to the phase of the case which it was intended to present.In the first paragraph of the above charge we presume the trial judge was referring to that phase of the case discussed by us in the last paragraph of our former opinion in this case; that is, if the defendant was not at the house of deceased for the simple purpose of obtaining a place to lodge, and, while awaiting the husband's return, with the permission of the wife, lay upon the bed, and while there was attacked by the husband, and to save his own life killed deceased, he would have been justifiable.If so intended, it should have been properly applied by the court, and the jury informed of the legal consequences of such acts.The jury were told in another part of this charge above quoted: "Whenever a party, by his own unlawful act, produces a condition of things wherein it becomes necessary for his safety to take life, etc., then the law imputes to him his own wrong, and its consequences to the extent that they may and should be considered in determining the grade of his offense, if any, which, but for such acts, would never have been occasioned."But they are not informed of what grade of offense he would in any such case be guilty.The grade of offense of which such party may be guilty reaches all the way from murder to justifiable homicide.To illustrate: If the wrongful act, whether illegal or not, be done with the intent to provoke a difficulty with a view of taking the life of deceased, and such difficulty is thereby provoked, and the necessity to take life produced, a killing, under such circumstances, though done to save one's life, is murder.The right of self-defense is forfeited.He is estopped from claiming that such a killing was done in self-defense.To...