Foster v. State

Citations

• 8 Tex. Ct. App. 248

Syllabus

<p>1. Declarations as Res Gest.33.—A declaration explanatory of an act is admissible in evidence as res gestee if it was made spontaneously at the time of the act and before deliberation or time to fabricate the statement. See the opinion in extenso on this subject.</p> <p>2. Same—Case Stated.—In a trial for murder there was conflicting evidence whether or not the deceased, when shot by the defendant, had a knife in his hand and was advancing with it on the defendant. The defence proposed, but was not allowed, to prove that the defendant on being arrested, within less than a minute after he shot the deceased, exclaimed, “I would shoot any man who was trying to cut my throat.” Held, that the proposed evidence was erroneously excluded. It was part of the res gestae, and was also competent as corroborative testimony that the deceased had a knife and when shot was advancing with it upon the defendant.</p> <p>3. Manslaughter — “Adequate Cause.”—¡Among the causes instanced by the Penal Code as adequate to reduce culpable homicide from murder to manslaughter is an “assault and battery by the deceased, causing pain or bloodshed.” To constitute this cause it is not necessary that both pain and bloodshed should be caused by the assault and battery; either is sufficient.</p> <p>4. Charge of the Court. —An instruction which has no application to any evidence adduced in the case is calculated to confuse the issues properly before the jury.</p> <p>6. Permissible Homicide.—In a trial for murder the court below in substance instructed the jury that the defendant was justifiable in killing the deceased if he killed him to prevent him from murdering the defendant’s brother; but that the killing was not justifiable if the deceased had been attacked by the defendant’s brother, or if they were engaged in a mutual conflict. And further, that if the defendant’s brother was the aggressor, and the defendant interposed in his behalf, the latter was not justified in taking life although at th