Stanley v. State

• Decision Date: 10 May 1911
• Citation: 137 S.W. 703
• Parties: STANLEY v. STATE.
• Court: Texas Court of Criminal Appeals

137 S.W. 703

STANLEY v. STATE.

Court of Criminal Appeals of Texas.

May 10, 1911.

Appeal from District Court, Polk County; L. B. Hightower, Judge.

John Henry Stanley was convicted of murder in the second degree, and he appeals. Reversed and remanded.

J. Holshousen and P. R. Rowe, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for murder in the second degree; the verdict of the jury awarding appellant 25 years in the penitentiary.

On the night previous to the homicide there had been trouble between the parties, and the deceased had fired at appellant with a shotgun. However, some of the testimony tends to indicate that he only shot over his head for the purpose of frightening him. It was a disputed issue as to whether he fired over his head to frighten him, or did in fact shoot at him. Appellant went away and came back later to the place in search of deceased. Deceased had in the meantime gone home. During that night appellant wrote a note to the wife of the owner of the premises. These parties were related to appellant. In this note was a threat against deceased. The next morning appellant returned to the scene of the trouble, and was sitting on the stile or steps over which people passed in going to the residence. While sitting there deceased approached him, armed with a gun. When within a short distance, the firing occurred and deceased was killed.

1. Without going into a detailed statement of these matters, appellant asked the following charge: "You are charged that threats made by a defendant will not deprive him of his right of self-defense. Therefore, if you find from the evidence that the defendant, John Henry Stanley, made any threat or threats against the deceased, Plum Thomas, the fact of his having made such threat or threats did not deprive the said defendant, John Henry Stanley, of his right of self-defense against an attack or threatened attack by said deceased, Plum Thomas. And if the deceased, Plum, at the time of the homicide was making or about to make an attack on defendant, or if it reasonably appeared to defendant that such attack was being made or about to be made, viewing the facts from defendant's standpoint, his right to defend his person from such attack or threatened attack would not be abridged by any previous threat or threats." While this charge is not technically correct, it embodies a principle of law that we think ought to have been given. Appellant's evidence is to the effect that Thomas was approaching him with a gun, and had used words and did acts indicating his purpose to shoot him with the gun, and that he fired in self-defense. Now, the court gave a charge on self-defense which was in the usual form and language. Appellant's contention was that under his testimony he had done nothing, said nothing, made no demonstration to execute any threat, but was simply sitting on the steps as deceased approached him, and that the demonstrations were all made on the part of deceased that brought about the fatal difficulty; that, if deceased had not made the demonstrations and used the language imputed to him, he would not have fired. Under these circumstances, the jury may and doubtless did use appellant's threat connected with the fact that he was at the place where the difficulty occurred against him in abridging his right of self-defense, and in fact eliminating it. If appellant had gone to the place and did anything to bring about the difficulty or to provoke the deceased into a difficulty for the purpose of killing...