Lister v. State

Citations

• 3 Tex. Ct. App. 17

Syllabus

<p>1. Recall of Witness.—Differences of counsel as to the testimony of a witness do not necessitate a recall of the witness. Proper practice, in such case, is for the judge to inform the jury that, if they shall disagree as to the testimony, the witness will be recalled at their instance.</p> <p>2. Same. — The recall of a witness, or the introduction of a new witness after argument to the jury has commenced, is matter of discretion with the court trying the cause; and its action will not be reversed by this court unless it be made clearly apparent that such discretion was abused.</p> <p>3. Charge of the Court. — The sufficiency and applicability of a charge in a felony case are to be tested by articles 494 and 495 of the Code of Criminal Procedure (Pose. Dig., arts. 3059, 3060), which require that a written charge distinctly setting forth the “law applicable to the case,” and stating plainly the “law of the case,” shall be delivered to the jury. These requirements refer and apply to the case made by the pleadings and the evidence; and they are not complied with unless the charge gives to the jury the law applicable to every legitimate deduction from the facts in evidence.</p> <p>4. Same.—In a trial for murder there was evidence tending to prove that shortly before the fatal rencounter the accused saw the deceased exhibiting a pistol, and that subsequently, when the accused shot the deceased, the latter was advancing on him in a threatening manner, and with his right hand apparently at the pocket in which he had previously placed his pistol, in the presence of the accused. Held, that this evidence made it incumbent on the court below to give in charge to the jury the law of self-defense as part of the law applicable to the case, and to have left it to the jury to determine whether the apparent danger was such as to require the accused to kill the deceased in order to save his own life, or to protect himself from serious bodily injury.</p> <p>5. Evidence.—In a trial f