Foster v. State

Citations

• 11 Tex. Ct. App. 105

Syllabus

<p>1. Homicide—Right of Self-Defense.— In a trial for murder there was evidence tending to prove that the deceased had made threats to kill the defendant, and that, when shot by the defendant, he had a pistol upon his person and was advancing on the defendant in a violent and threatening manner. Held, error to so charge the jury as to condition the defendant’s right of self-defense upon his having resorted to all other preventive means, save retreat, before firing upon the deceased. On the contrary, if it reasonably appeared by the acts of the deceased, or by his words coupled with his acts, that it was his purpose to take the life of the defendant, or to do him serious bodily harm, the defendant, before slaying the deceased,was not bound to resort to all other preventive means save retreat, but had the right to slay him instantly and with the most effective means. This right accrued to the defendant not only at the very time the attack was being made upon him, but at any time after some act was done by the deceased showing an evident intent to take the life of the defendant.</p> <p>2. Same—Charge of the Court.—Instructions to juries should carefully avoid confounding the essential distinctions which the Penal Code, in articles 570 and 572, establishes between those cases in which the assaulted party may slay his assailant without resorting to other means of prevention, and those in which it is incumbent on him to first resort to all such means save retreat. Kendall v. State, 8 Texas Ct. App. 569, cited on this subject with emphatic approval.</p>