Logan v. State

• Decision Date: 24 June 1904
• Parties: LOGAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 721

81 S.W. 721

LOGAN v. STATE.

Court of Criminal Appeals of Texas.

June 24, 1904.

Appeal from District Court, Falls County; Sam R. Scott, Judge.

Ed Logan was convicted of murder in the second degree, and appeals. Reversed.

Nat Lewellyn, Tom Connally, and Z. I. Harlan, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for murder in the second degree. The court charged the jury on the question of self-defense that: "If from the evidence you believe defendant killed the said Neal Seely, but further believe that at the time of so doing deceased had made an attack on him which, from the manner and character of it, and the relative strength of the parties, and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, defendant killed deceased, then you will acquit him. * * * If from the acts (if any) of the deceased, or from his words coupled with his acts (if any), at the time of the homicide, it reasonably appeared to defendant, viewing the facts from defendant's standpoint at the time, that he was in danger of losing his life or of suffering serious bodily injury at the hands of deceased, and you find that defendant, acting under such apprehension, shot and killed deceased, then and in that event defendant would be justified. * * * If, however, you find from the evidence, after viewing the facts from the defendant's standpoint, that it did not reasonably appear to defendant that he was in danger of losing his life nor of suffering serious bodily injury at the hands of deceased then and there at the time he fired the shot, then if you should so find you will find against his plea of self-defense." Exception was reserved to the charge as given; that the actual attack had not been made upon appellant, but that it was only a threatened attack; that this charge submitted the case upon a false theory; that the evidence showed that at the time deceased was only advancing upon appellant and threatening an attack. The state's case makes it clear that appellant would be guilty of murder. Appellant, however, through his own testimony, supported by other witnesses, shows that deceased was in the restaurant, under the influence of intoxicants, at the time defendant entered; that deceased became boisterous and profane, finally directing his profanity at appellant, and subsequently caught or caught at appellan...