# Banks v. State

> Court of Criminal Appeals of Texas · June 15, 1983 · 656 S.W.2d 446

URL: https://www.frixlaw.com/law-library/cases/9763246

## Case

- **Full name:** Michael Joseph BANKS, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 15, 1983
- **Citations:** 656 S.W.2d 446; 1983 Tex. Crim. App. LEXIS 1068
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Tom G. Davis
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763246

## Opinion text

McCORMICK, Judge,
dissenting.
Because the majority fails to address the overriding issue in this cause, I must dissent. The majority, despite the clear legislative expression to the contrary, continues to follow the Code of the West and proliferate the romantic notion that everyone in Texas can tote his .45 and settle his differences at high noon on main street.
Though I run the risk of being forever ostracized by the purveyors of Texana, I must advocate the abolition of the charge on a defendant’s right to carry arms to the scene of the difficulty and to seek an explanation of differences. We should wait no longer to be dragged, kicking and screaming, into the twentieth century; we should make the expedition voluntarily. The Legislature recognized this with the passage of the new Penal Code in 1973. After ten years, this Court should now give proper meaning to those intendments.
The right of a defendant to arm himself and seek an explanation or discussion concerning his differences with the deceased has its genesis in Texas jurisprudence in the *448 case of Cartwright v. State, 14 Tex.App.486 (1883). This “right” was first fully stated eleven years later in Shannon v. State, 35 Tex.Cr.R. 2 , 28 S.W. 687 (Tex.Cr.App.1894). The right has not been provided for by either the Constitution or statutes of the State. It has survived continually as part of the court made law for one hundred years, despite its apparent legislative interment in 1973.
The passage of the new Penal Code in 1973 brought with it many changes in the substantive criminal law of this State. But none were more drastic than the changes made in the law of justification. 1 For the first time, the defense of necessity was firmly established in the criminal law of Texas. For the first time, the law restricted the right of a person to resist an unlawful arrest by the use of force. The restriction on the right of self-defense known as provoking the difficulty was codified for the first time. Mutual combat was likewise statutorily recognized for the first time. And perhaps even more directly affronting the western heritage, a man was required to retreat for the first time.
The commentators all recognized that these changes were designed to remove the street as the forum for determining the differences of parties, and place disputes where they belonged: in the courthouses of the State. The Legislature having codified the law of self-defense, the conclusion is inescapable that their failure to include the right to arm oneself was a refutation of a rule they found repugnant to the times. 2 This philosophy is not new:
“It will doubtless work a great improvement on the moral and social condition of men, when every man shall come fully to understand that, in the great social compact under and by which states and communities are bound and held together, each individual has compromised the right to avenge his own wrongs, and must look to the state for redress. We must not go back to that state of barbarism in which each claims the right to administer the law in his own case; that law being simply the domination of the strong and the violent over the weak and submissive.
“It is useless to talk about personal liberty being infringed by laws such as that under consideration. The world has seen too much licentiousness cloaked under the name of natural or personal liberty; natural and personal liberty are exchanged, under the social compact of states, for civil liberty.” 3
Such was the description given by Justice Walker in discussing the effect of the act of April 12, 1871, regulating, and in certain cases, prohibiting, the carrying of deadly weapons. In upholding these statutes against a charge that they infringed upon the constitutional right of the people to keep and bear arms, Justice Walker pointed out that the other states of the Union had such laws and that Texas was just coming of age and was at the point where its enactment was justified:
“This law is not peculiar to our own state, nor is the necessity which justified the enactment (whatever may be said of us to the contrary) peculiar to Texas, It is safe to say that almost, if not every one of the states of this Union have a similar law upon their statute books, and indeed, so far as we have been able to examine them, they are more rigorous than the act. under consideration. Other older states have been better able to carry out these laws than we have yet been, and the laws perhaps themselves have been less repugnant to the people of those states, than our law has been to a class of our own people.” English, supra, at 479.
Justice Walker concluded:
*449 We do not think the people of Texas are so bad as this, and we do think that the latter half of the nineteenth century is not too soon for Christian and civilized states to legislate against any and every species of crime.... We will not say to what extent the early customs and habits of the people of this state should be respected and accommodated, where they may come in conflict with the ideas of intelligent and well-meaning legislators.” English, supra, at 479-480.
I believe the Legislature intended in 1973 to abolish that portion of the law which allowed a person to arm himself and seek an explanation. If this Court continues to allow this to be the law then we are advocating a violation of the law by allowing a person to carry prohibited weapons contrary to the provisions of Sec. 46.02, V.T. C.A. Penal Code. We are also saying to the lawless element of our society that it is permissible to arm yourself and go to your antagonist knowing you may have to kill him. We are saying, don’t clutter our courts with civil suits to arbitrate your differences; instead, add to our overcrowded criminal dockets with homicide cases which arise from senseless elimination of human lives.
“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind immitation of the past.” Oliver Wendall Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 468 (1897).
CAMPBELL, J., joins in this dissent.
.For a detailed explanation of the examples which are set forth, see: Practice Commentary, Searcy and Patterson, V.A.T.C. Penal Code, Chapter 9; and Explanatory Comments, 1 Branch’s Texas Annotated Penal Statutes, 3rd ed., Chapter 9.
. Perhaps even more telling of the changing attitude of the 1973 Legislature was the repeal of Art. 1220, Penal Code (1925), which had justified the homicide committed by a husband upon his wife’s paramour.
. English v. The State, 35 Tex. 473 (1872).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763246. Public record. Not legal advice.