Munos v. State

• Decision Date: 26 January 1910
• Citation: 124 S.W. 941
• Parties: MUNOS v. STATE.
• Court: Texas Court of Criminal Appeals

124 S.W. 941

MUNOS v. STATE.

Court of Criminal Appeals of Texas.

January 26, 1910.

Appeal from District Court, Potter County; J. N. Browning, Judge.

Pilar Munos was convicted of manslaughter, and appeals. Affirmed.

John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Potter county on May 13, 1909, charged with the murder of one Jose Perris. On a trial therein had on June 2d of the same year he was found guilty of the offense of manslaughter, and his punishment assessed at confinement in the penitentiary for two years.

1. The court submitted the issues of murder in the first degree, murder in the second degree, manslaughter, and self-defense. Among other things, on the issue of manslaughter, the court thus instructed the jury: "Insulting words or gestures, or an assault and battery, so slight as to show no intention to inflict pain or injury, are not deemed adequate causes. The following are deemed adequate causes, to wit: The use of insulting language to defendant by the deceased about the defendant's mother, as testified by defendant and other witnesses, accompanied by an assault upon defendant with a knife, if done in such manner and under such circumstances as to indicate an intention to kill or do serious bodily injury."

This charge of the court is complained of as being erroneous under the facts, and to cure the error therein appellant requested the following special instruction: "You are instructed, at the request of the defendant, that homicide may be reduced from murder to manslaughter upon any cause that produces a degree of passion in the mind of the slayer that renders him incapable of cool reflection; and if you believe from the evidence that the deceased struck the defendant with a knife which produced bloodshed from the defendant, then the law declares the same to be adequate cause, and a homicide committed under terror, rage, and resentment of such injury, then you cannot consider any higher degree of crime than manslaughter."

The charge of the court complained of is erroneous under the facts, in that it requires the jury to believe both the use of insulting language by the deceased about defendant's mother, and, further, that such language should be accompanied by an assault with a knife. Since, however, appellant was convicted of manslaughter, and particularly in view of the fact that he was given the lowest penalty, an incorrect charge on this subject could not possibly have injured him. This view also disposes of many other criticisms of the court's charge on this subject.

2. The court, on the law of self-defense, thus instructed the jury:

"Every person is permitted by law to defend himself against an unlawful attack, reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary.

"Homicide is justified by law when committed in defense of one's person against any unlawful and violent attack, made in such a manner as to produce a reasonable expectation or fear of death or some serious bodily injury.

"A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such cases the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.

"If from the evidence you believe the defendant...