holding that a “yes” answer on both a question of assault and a question of self-defense did not conflict
How later courts described this case
- holding that a “yes” answer on both a question of assault and a question of self-defense did not conflict
- noting that definition of unlawful recognizes defense of justification
- describing self-defense, a defense long recognized as a plea in confession and avoidance
Written by the judges who cited it.
The opinion
OSBORN, Justice,
concurring.
I concur. I do so on the basis of the instructions and definitions given in connection with the special issues in this case and upon the belief that the issue of self-defense is in the nature of an inferential rebuttal issue. In connection with the issues submitted to the jury, the trial Court in this case instructed them as to the relevant terms as follows:
“ ‘Assault’ means any attempt to commit a battery, or any threatening gesture showing in itself or by words accompanying it, an immediate intention, coupled with an ability’ to commit a battery.
“ ‘Battery’ means the least touching of another person willfully and in anger, by the use of any part of the body of the party committing the offense. A person commits a battery when he uses any unlawful violence to the person of another with intent to injure him, whatever be the means or degree of violence used.
“You are instructed that the term ‘self-defense’ means that when a person is attacked, or threatened with an attack by another, the law excuses or justifies such person so attacked in resorting to any reasonable means at his command to prevent his receipt of assault and battery, and it is not necessary that there should be actual danger, as a person has a right *819 to defend his person from apparent danger as fully and to the same extent as he would had the danger been real, provided he acts upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time.”
In Foster v. H. E. Butt Grocery Co., supra, Chief Justice Barrow recognized self-defense as an inferential rebuttal issue. In his opinion he said:
“* * * if the evidence raises an issue of justification, such as self-defense, the plaintiff has the burden of proof to overcome the evidence of self-defense. Otherwise, plaintiff fails to prove his cause of action * *
In this case, if the Plaintiff had the burden to overcome the evidence of self-defense, he has not established a prima facie case by the jury’s answer to special issue No. 1 because under the definitions of assault and battery, the jury was not required to consider the issue of justification in answering special issue No. 1. Furthermore, there is no irreconcilable conflict because issue No. 1 does not establish the Plaintiff’s right to a judgment as opposed to the jury’s answer to special issue No. 2 which does establish the Defendant’s right to a judgment. Since there was no irreconcilable conflict under the test established in the Dunn case, the Appellee was entitled to judgment based upon the jury’s answer to Question No. 2.
Since the holding in Yarborough v. Ber-ner, 467 S.W.2d 188 (Tex.1971), which prohibits inferential rebuttal issues, it appears that in an assault and battery case the Court normally should not fragment the issues into two questions as was done in this case, but should submit one issue inquiring whether or not an assault and battery was committed and then, as suggested by Chief Justice Barrow in the Foster case, have the definition of assault embrace the element of self-defense, and if the defendant was acting in self-defense, the assault would not be unlawful. In such instance, the one answer by the jury would avoid any possible conflict. Illustrative of the type of issue and instruction which may be used is the one appearing in Grieger v. Vega, 153 Tex. 498 , 271 S.W.2d 85 (1954).
ON MOTION FOR REHEARING