Opinion

Brown v. State

  • 152 Tex. Crim. 440
  • 214 S.W.2d 792
  • 1948 Tex. Crim. App. LEXIS 1350
Court
Court of Criminal Appeals of Texas
Filed
Oct 20, 1948
Status
Published
Author
Beauchamp
On the bench
Davidson, Beauchamp
Cited by
2 cases

The opinion

ON appellant’s motion for rehearing.

BEAUCHAMP, Judge.

In her motion for rehearing appellant lodges a number of complaints about what the opinion did hold and what- it did pot hold. We have carefully reviewed the record in the.light of these complaints. and are of the conclusion that the original

*444

opinion properly disposed of all issues in the case. Each “point” enumerated has been definitely considered but we do not deem it of value to the jurisprudence of the State to discuss them all.

“Point No. 3” complains that this Court committed error in holding that the issue of self-defense against an assault less than deadly, under Article 1224 P. C., was not raised by the evidence. Appellant testified that the prosecuting witness came to her back door and they engaged in a quarrel in which there was much swearing and threats were made. The prosecuting witness was going to whip appellant, but there is no evidence of any gesture whatsoever until appellant began to shoot. The first shot was fired to the ground, “* * * and the next bullet was the one in the shoulder and she stepped to me and put her foot on the bottom door step and had her right hand in her. bosom.” This is the testimony of the appellant, unmodified by any other so far as we can see. Consequently, the firing was done while the parties were engaged in a typical negro quarrel.

In order to be able to invoke the defense described in Article 1224 of the Penal Code, “* * * all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack.” The injured party had merely threatened, at some unspecified time in the future, to whip appellant. Whether it was five minutes later, five hours, or five days, is immaterial. The shooting did not take place while the injured party was “* * * in the very act of making such unlawful and violent attack.”

Appellant’s motion for rehearing is overruled.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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