Hawthorne v. State

• Decision Date: 16 November 1889
• Parties: HAWTHORNE <I>v.</I> STATE.
• Court: Texas Court of Appeals

12 S.W. 603

HAWTHORNE

v. STATE.

Court of Appeals of Texas.

November 16, 1889.

Appeal from district court, Bosque county; J. M. HALL, Judge.

Poney Hawthorne was convicted of an assault with intent to commit murder, and appeals.

Lockett & Lockett, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

In some important particulars, there is conflict between the evidence adduced by the state and that adduced by the defendant. For the purposes of this opinion, we will state, substantially, only so much of the evidence as presents the defensive theories of the case. Some weeks prior to the difficulty, Bennett, the injured party, accused the defendant of the theft of a plow. Shortly thereafter the parties met, and a quarrel ensued between them about said accusation; and there is some evidence tending to show that Bennett, on that occasion, sought to assault defendant with a pistol. Bennett thereafter threatened to kill defendant, and the threat was communicated to the defendant prior to the difficulty now under consideration. A mutual friend of the parties sought to have them settle their troubles amicably, but Bennett would make no concessions, and persisted in his accusations and enmity against the defendant. However, a few days before the difficulty in which defendant shot Bennett, the latter sent word to the former to come and see him, that they might have a peaceable settlement of their trouble. Defendant received this message, and, in company with one Waddill, a friend of his, went to see Bennett, and found him in his field, at work. Defendant told Bennett he had come to have a peaceable settlement. Bennett replied: "All right." Waddill then asked Bennett if he would sign a written instrument stating that he did not believe that defendant stole the plow, or that he had no evidence that he stole it. Bennett answered that he would not, and sprang a few feet away, and seized a gun which was on the ground. Defendant also seized the gun; and while he and Bennett were struggling over it, Waddill took it away from them. Bennett then ran, and defendant pursued him, firing three shots from a pistol at him as they ran, one of which shots struck Bennett in the arm. Defendant overtook Bennett, caught and threw him down, and inflicted several blows on his head with a rock. It was proved by several witnesses that Bennett's general reputation for peace and quiet was bad, and that he was a man who would be likely to execute a threat made by him.

As we view the evidence, it does not raise the issue of self-defense, because it is manifest that at the time the defendant shot at Bennett, and at the time he beat him with the rock, he (Bennett) was disarmed, was fleeing from his adversary, and threatening no violence to him. Whatever danger may have existed at the commencement of the difficulty had entirely ceased at the time the defendant fired the shots and inflicted the blows with the rock. The right of self-defense is based upon and limited by necessity. When the necessity, real or apparent, ceases, the right no longer exists. Blake v. State, 3 Tex. App. 581; West v. State, 2 Tex. App. 462; Hobbs v. State, 16 Tex. App. 517. But the trial judge, in his charge to the jury, submitted self-defense as an issue in the case; and, the error of the charge in this particular being favorable to the defendant, he cannot complain of such error, nor that the law of self-defense was imperfectly or erroneously explained.

We are of opinion that the evidence fairly presents the issue of aggravated assault and battery. Upon this issue the charge of the court is, we think, incomplete, — in some particulars, incorrect, — and does not plainly present the law applicable to the facts proved. In explaining the laws of aggravated assault, the charge gives the statutory...