Laws v. State

• Decision Date: 19 December 1888
• Citation: 10 S.W. 220
• Parties: LAWS <I>v.</I> STATE.
• Court: Texas Court of Appeals

10 S.W. 220

LAWS

v. STATE.

Court of Appeals of Texas.

December 19, 1888.

Appeal from district court, Franklin county; W. P. McLEAN, Judge.

Talbert & Turner, R. E. Kennan, and H. Glass, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

Homicide is permitted by law when inflicted for the purpose of preventing theft at night, and the homicide in such case is justifiable at any time while the offender is at the place where the theft is committed, or within reach of gunshot from such place. Pen. Code, art. 570. In this case no question is made as to the commission of the homicide by the defendant, but the defendant claims that at the time he shot and killed the deceased the latter had committed theft of whisky belonging to the former, and was within gunshot of the place where the theft was committed, and that it was nighttime when the theft and the homicide were committed, and that he committed the homicide for the purpose of preventing the consequences of the theft. There is evidence tending to support this defense.

In instructing the jury with reference to such defense, the court omitted to define "night-time." This omission in the charge was not excepted to, but was insisted upon as error in defendant's motion for a new trial. There is a conflict in the evidence as to the exact time when the homicide occurred. Some of the witnesses fix the time at later than 30 minutes after sunset, and some at about sunset. This being the state of the evidence, it was very important to the defendant, we think, that the jury should understand the legal meaning of the word "night," as used in the statute referred to. This statute does not furnish a definition of the word, and we must therefore resort to other authorities for its meaning.

At common-law, "day-time" means those portions of the morning and evening wherein, though the sun is below the horizon, sufficient of his light is above for the features of a man to be reasonably discerned. If there is not sufficient light for this purpose, it is night. Light from the moon is not to be taken into account. There is no middle space between day and night, but where one begins the other ends. But the difficulties of applying this common-law rule are so considerable that it has been changed by statute in England, and in most of the American states, and these statutes prescribe exactly the time which separates the day from the night. Bish. Stat. Cr. § 276. In this state, with reference to the crime...