Leonard v. State, 31418
| Decision Date | 03 February 1960 |
| Docket Number | No. 31418,31418 |
| Citation | 332 S.W.2d 562,169 Tex.Crim. 147 |
| Parties | McKinney LEONARD, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Musslewhite & Musslewhite, Lufkin (R. C. Musslewhite, Lufkin, of counsel), for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
Tried under indictment alleging murder with malice, appellant was found guilty of murder without malice and assessed a term of five years. The jury rejected his claim of self-defense and defense of his home, and his application for suspended sentence.
Appellant's wife Jimmie Lee was the sister of the deceased, Joseph Bogany, and the state witness Haywood Bogany.
Sandra Bogany, wife of the deceased, also testified as a stae witness.
By the testimony of the witnesses for the State and the confession of appellant, introduced without objection, these facts were established.
Jimmie Lee, appellant's wife, accompanied Joseph Bogany and his wife Sandra to the Black Cat and the 400 Club where they drank some beer. Appellant appeared in the club and his wife talked with him.
Appellant was at one of the clubs when Joseph, his wife and appellant's wife left for home. When they arrived at the home of appellant and Jimmie Lee, she invited them to go in, saying 'We're not going to be here long.'
The confession of appellant thus described what then occurred:
The testimony of Sandra and Haywood Bogany and the bullet wounds found on the body of the deceased are consistent with this version of the killing.
Appellant testified. He admitted that he signed the confession, but said he could not remember making the statement above quoted. His version of the shooting was that his wife came in and started arguing and he 'kind of shoved her back'; that she came into him again and he caught her by the hand and she said 'turn my hand loose'; that the deceased came running in and commenced beating him in the mouth and chest; burst his lip and knocked him over the bed; that appellant and his wife both ordered the deceased to leave; that Haywood, who had come in the back door, put his arms around the deceased and he and Sandra were carrying him out of the house; that the deceased was telling them to turn him loose and said 'I'm going to kill the son of a bitch'. Appellant testified that he then reached in the drawer of a dresser and got his gun; that deceased about the same time
Appellant testified that he fired 'about three times while he was backing up' because he was scared of the deceased and felt that the deceased was about to kill him or do him some 'serious violence' if he did not stop him.
He denied that he shot the deceased twice more as he was lying on the floor at his feet, or that he shot the deceased in the back.
The principal grounds for reversal relate to the court's charge.
The court, in his charge, instructed the jury upon the law of self-defense and told the jury that if they believed that appellant. was attacked by the deceased, or it reasonably appeared to him at the time that he was about to be attacked by the deceased '* * * in such manner that there was created in the mind of the said defendant a reasonable expectation or fear of death or serious bodily injury at the hands of the...
To continue reading
Request your trial
-
Smith v. State
...is given. Powers v. State, Tex.Cr.App., 396 S.W.2d 389; Gilbert v. State, 170 Tex.Cr.R. 335, 340 S.W.2d 808; Leonard v. State, 169 Tex.Cr.R. 147, 332 S.W.2d 562. See 4 Branch's Ann.P.C.2d, Sec. 2313. The charge in the case at bar having restricted the appellant's right of self-defense the c......
-
Dickson v. State
...attack or is doing some act preparatory to the attack.' See also Johnson v. State, 167 Tex.Cr.R. 289, 319 S.W.2d 720; Leonard v. State, 169 Tex.Cr.R. 147, 332 S.W.2d 562; Mays v. State, 170 Tex.Cr.R. 293, 340 S.W.2d 43; Howard v. State, 172 Tex.Cr.R. 352, 357 S.W.2d In the case at bar, the ......
-
Rodriquez v. State
...on the relative size and strength of the parties. Also see Powers v. State, 396 S.W.2d 389 (Tex.Cr.App.1965); Leonard v. State, 169 Tex.Cr.R. 147, 332 S.W.2d 562 (1960); Gilbert v. State, 170 Tex.Cr.R. 335, 340 S.W.2d 808 (1960); Barkley v. State, 152 Tex.Cr.R. 376, 214 S.W.2d 287 (1948); G......
-
Powers v. State
...court on self-defense, the failure to further charge on the relative size and strength of the parties is not error. Leonard v. State, 169 Tex.Cr.R. 147, 332 S.W.2d 562; Gilbert v. State, 170 Tex.Cr.R. 335, 340 S.W.2d Complaint is made in bill of exception #3 to certain argument by special p......