Orman v. State

• Citation: 6 S.W. 544
• Parties: ORMAN v. STATE.
• Decision Date: 16 December 1887
• Court: Court of Appeals of Texas

6 S.W. 544

ORMAN v. STATE.

Court of Appeals of Texas.

December 16, 1887.

Appeal from district court, McLennan county; J. N. HENDERSON, Judge.

Indictment for murder. This is defendant's second appeal from his conviction of murder in the second degree. He was charged with the murder of W. F. Houghston, and the facts appear in Orman v. State, 3 S. W. Rep. 468. On the second trial the court charged the jury as follows: "As to `cooling time,' the court charges you that it is time for passion to subside and reason to interpose after provocation. What is cooling time is a question for the jury under the facts and circumstances of each particular case."

George Clark and Herring & Kelley, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

This cause was before us upon a former appeal, upon substantially the same facts and charge of the trial court, and the judgment of conviction was reversed and the cause remanded for another trial, because of an error in the charge upon self-defense. 22 Tex. App. 604, 3 S. W. Rep. 468. We held on the former appeal that it was error to charge with respect to the character of self-defense defined in article 572, Pen. Code, because the facts of the case did not demand and warrant such a charge, for the reason that if deceased made an attack upon the person of the defendant, it was a murderous attack, coming clearly within the provisions of article 570, Pen. Code, and hence that article alone was applicable to the evidence. Upon the issue of self-defense, the evidence in the record now before us is in no material particular different from that which was before us on the first appeal; and yet the learned trial judge gave in his charge to the jury the substance of article 572, which portion of his charge was promptly excepted to by the defendant. We still entertain the opinion that such charge was inapplicable to the facts of this case, calculated to confuse and mislead the jury, and injuriously affect the defendant's rights. As made by the evidence the issue of self-defense was governed by the provisions of article 570 alone, and article 572 should not have been given in charge. Kendall v. State, 8 Tex. App. 569. In the case cited, it is said: "If the attack of the person slain was manifestly with the intent to murder or maim, — that is, made with weapons or other means calculated to produce either of those results, — then there is no occasion to instruct a jury as to the law which obtains in case the attack was of a milder character, because such law is not applicable to the case, and can subserve no purpose other than to confuse the jury." It is manifest from the evidence in this case, that if the deceased, at the time he was shot by the defendant, was making any attack upon the defendant, it was an attack with a deadly weapon, and made with the intent to kill the defendant, or inflict upon him serious bodily harm. There is no evidence even tending to show an attack of a milder character.

As a part of the law of self-defense, the charge of the court, with reference to threats made by deceased against the appellant, is complained of by defendant, and upon this subject a special instruction was requested by counsel for defendant, and was refused by the court. After a careful examination of this portion of the court's charge, we are of the opinion that it is full, fair, and correct, applicable and pertinent to the evidence, not only embodying the law as expressed in the refused special instruction, but more favorably to the defendant than in the said special instruction.

Serious objections are urged by counsel for the defendant to the court's charge upon the issue of manslaughter. Except in two particulars we are of the...