Muely v. State

• Decision Date: 30 January 1892
• Citation: 18 S.W. 411
• Parties: MUELY v. STATE.
• Court: Texas Court of Appeals

18 S.W. 411

MUELY v. STATE.

Court of Appeals of Texas.

January 30, 1892.

Appeal from district court, Travis county.

Indictment of Alexander Muely for murder. Judgment of conviction. Defendant appeals. Affirmed.

G. R. Scott, J. O. Nicholson, W. Schowlter, and Walton, Hill & Walton, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

WHITE, P. J.

The only questions raised on appeal in this case are objections urged to supposed defects in the charge of the court as given to the jury. It is objected that the charge defined "murder in the first degree" and "express malice," when this issue was not in the case, appellant having been previously acquitted of murder in the first degree. If any error was committed in this direction, — which we do not concede, — it was fully cured by the court's expressly stating to the jury that the defendant had been acquitted of murder in the first degree, and in applying the law solely to murder in the second degree, as it might be evidenced by the facts adduced on the trial.

The court did not err in instructing the jury as to the law of perfect as well as imperfect self-defense. In our opinion the evidence called for such a charge. Meuly v. State, 26 Tex. App. 274, 9 S. W. Rep. 563. And the same may be said with regard to the charge relative to the defendant's provoking the difficulty. Having given the law fully in reference to this latter phase of the case, it was no error to refuse to give in charge defendant's requested instruction. Defendant testified in his own behalf on the trial. His counsel asked of the court a special requested instruction, as follows: "Under the law, a defendant in a criminal case has the right to testify in his own defense. The jury are the exclusive judges of the credibility of his testimony, and the weight to be given to it. As a witness, the defendant is to be judged as other witnesses are judged and weighed, viz., by their appearance, demeanor on the stand, and the facts and circumstances surrounding them." This instruction was given by the court, with the following words added there by the judge: "Given with the additional statement that, in determining the credibility of the defendant, who testifies in his own behalf, his interest in the issues involved is to be considered." It is urged that the court erred in making this addition to the special instruction as asked by defendant. Had the court of its own motion given the special instruction, without being requested...