Hall v. State

• Citation: 64 S.W. 248
• Parties: HALL v. STATE.
• Decision Date: 22 June 1901
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

64 S.W. 248

HALL v. STATE.

Court of Criminal Appeals of Texas.

June 22, 1901.

Appeal from district court, Collin county; J. E. Dillard, Judge.

Gabe Hall was convicted of assault with intent to murder, and he appeals. Reversed.

For opinion on former appeal, see 60 S. W. 769.

Garnett, Smith & Merritt, J. M. Pearson, and Jones & Eastham, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of assault with intent to murder, and his punishment assessed at seven years' confinement in the penitentiary.

The opinion on the former appeal will be found in 60 S. W. 769. The statement of the case as there reported is substantially as contained in this record. Appellant and his wife had separated prior to the difficulty. The wife had taken the children to the place where the difficulty occurred, and defendant claims that he went there for the purpose of seeing his children. The evidence for the defendant also shows that he went there at the request of his wife. The court gave a general charge upon self-defense. On the former appeal it was said: "If he went to the house of his father-in-law at the request of his wife, with no ulterior object of killing her or making upon her an attack of any sort, his right of self-defense would not be abridged. If she, under those circumstances attacked him with a pistol, he would have the legal right to defend himself, even to taking life." Exception was reserved to the charge because the jury were not instructed that appellant had the legal right to go upon the premises to see his children, or upon the invitation of his wife. Neither of these phases of the law was given. The fact that the court did not submit the issue of trespass by appellant upon the premises on the state's behalf would not justify the court, under the circumstances of this case, in not submitting the law applicable to this testimony. If appellant went there peaceably to see his children, or was there at the request of his wife, he was not a trespasser. We are further of the opinion that, independent of the request of his wife, if he went there for the purpose of seeing his children, he had the right to do so, unless by so doing, or in so doing, he brought about a breach of the peace. In other words, as long as appellant went there peaceably and without bringing about difficulties, he would have the right to visit his children. Of course, if he was interdicted by the owner of the premises from coming upon the same, and he could not do so without bringing about a difficulty or breach of the peace or becoming a trespasser, he would not be authorized to go upon the premises. He would have to resort to legal process to obtain interviews with his children.

Exception was also reserved to the charge because it did not inform the jury that if defendant was justifiable in firing the first shot in his self-defense from the attack made upon him by his wife, and they did not believe he was justified in firing the second shot, and by...