Williford v. State

• Citation: 42 S.W. 972
• Parties: WILLIFORD v. STATE.
• Decision Date: 08 December 1897
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

42 S.W. 972

WILLIFORD v. STATE.

Court of Criminal Appeals of Texas.

December 8, 1897.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

William Williford was convicted of murder in the second degree, and he appeals. Affirmed.

Seay & Seay, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 21 years in the penitentiary; hence this appeal.

Appellant complains of this portion of the charge of the court on self-defense: "All self-defense rests upon necessity. Where there is no necessity to kill, it cannot be self-defense." This is law. Under peculiar circumstances, it would be necessary to qualify or explain what is meant by necessity. If the necessity was apparent only, then the charge might be calculated to mislead the jury, to the injury of the appellant; but, if the necessity was real, there is no injury in the charge. Apparent necessity must be as pressing and imminent as real necessity. The charge of the court is not treated fairly; for, when we read it altogether, it does not convey the idea that the necessity in this case must be real, and not apparent. Upon self-defense the court instructed the jury as follows: "All self-defense rests upon necessity. Where there is no necessity to kill, it cannot be self-defense; but a reasonable apprehension of death or great bodily harm will excuse a party 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 case 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." As we before remarked, if the danger was actual, there was no necessity of charging the jury in regard to apparent danger; but this charge presents apparent danger clearly and explicitly, and, when considered as a whole, is the law, though the danger was apparent only.

Counsel complains of the following charge: "The law only allows a person to use such force as may be necessary to overcome the force that may be used against him, or, as he believes, is being used, or about to be used, against him. And in this case, if you believe from the evidence that John Baker was about to make an assault upon the defendant, but did not intend to kill him or inflict serious bodily injury upon him, and that it did not reasonably appear to defendant that said Baker intended to kill him or inflict upon him serious bodily injury, then, before defendant could justify, under the law of self-defense, the taking of the said Baker's life, he would have to resort to all other reasonable means of defense. And in this case, if you believe from the evidence that John Baker did assault defendant at the time of the killing (if any), but had no intention to kill defendant or inflict upon him serious bodily injury, and that defendant reasonably knew said fact, then,...