Opinion

McFarlane v. State

  • 159 Tex. Crim. 658
  • 266 S.W.2d 133
  • 1954 Tex. Crim. App. LEXIS 2391
Court
Court of Criminal Appeals of Texas
Filed
Jan 20, 1954
Status
Published
Author
Woodley
On the bench
Woodley
Cited by
14 cases
Authority
More cited than 7.3%

The opinion

ON appellant’s motion for rehearing.

WOODLEY, Judge.

Appellant insists that there is no testimony in the record to support the statement in our original opinion that the picture of the prosecutrix “graphically shows the extent of her injuries.”

The prosecutrix testified that the picture was made the morning immediately following the night of the assault, that it was taken by Mr. Arch Greenwood, a newspaper photographer, in the courtroom. She then testified:

“Q. Does that picture truly and correctly represent you as you appeared and as you looked on that morning? A. Yes, sir, except for the coloring and the bruises.

“Q. Well in a black and white picture it truly and correctly represents you does it not? A. Yes, sir.”

Under the court’s charge, one of the issues for the jury was that of self-defense against an attack not threatening serious bodily injury or death. Under the charge the court properly restricted appellant’s right of defense by an instruction to the effect that no greater force than appeared to appellant to be necessary could be used to repel the attack being made upon him, if any.

For this additional reason the extent of the injuries inflicted upon the prosecutrix was important to the state’s case.

We remain convinced that the court did not err in admitting the picture in evidence.

*662 Appellant again urges that his requested charge No. 3 should have been given.

By this requested charge appellant sought to have the jury instructed to the effect that if from the acts and words, or both, of the prosecutrix there was created in the mind of appellant a reasonable apprehension of danger or bodily injury and it reasonably appeared to appellant that the prosecutrix was about to make an unlawful attack upon him, he had the right to defend himself from such danger or apparent danger.

Art. 1224 P.C. authorizes self-defense against a milder attack only when a violent attack is being actually made, not when the attacker is about to attack or doing some act preparatory thereto. Smith v. State, 152 Tex. Cr. Rep. 145, 210 S.W. 2d 827 ; Brown v. State, 152 Tex. Cr. Rep. 440, 214 S.W. 2d 792 .

The trial court fully submitted appellant’s right to use force against force, and to defend himself against the claimed unlawful attack upon him by the prosecutrix, and correctly declined to extend such right of self-defense to the appearance of danger that an attack not giving rise to apprehension or fear of death or serious bodily injury was about to be made.

Remaining convinced that the appeal was properly disposed of on original submission, 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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