Parker v. State

Citations

• 22 Tex. Ct. App. 105
• 3 S.W. 100
• 1886 Tex. Crim. App. LEXIS 232

Syllabus

<p>1. Practice—Acquittal.—It is a well settled principle o.f law in this State that if a defendant upon trial for the higher grade of an offense consisting-of degrees is convicted of an inferior grade of such offense, such conviction operates as an acquittal of all the grades higher than that for which the conviction was had, and will bar subsequent prosecution for any of such higher grades.</p> <p>-2. Same—Murder—Manslaughter—Ci-ia.e<3-e of the Court.—The rule of practice in this State requires that the charge of the court shall be limited to the ease on trial. The former conviction in this case being for manslaughter, it operated an acquittal of murder both of the first and •second degrees It was error, therefore, to charge the jury upon the law •applicable to murder of the first and second degrees. Manslaughter being the offense for which the defendant was on trial, to that should have been limited the charge of the court, in as much as, though a grade comprehended in a charge of murder, it is nevertheless a different offense than murder, and its definition is not dependent upon a definition of murder. See the opinion in extenso on the question.</p> <p>3. Same.—Moreover, the charge in this case is radically erroneous- in that,. having charged the law of murder of the first and second degrees, and informed the jury that they could not convict of a higher grade of homicide than manslaughter, the trial court instructed the jury, if they believed from the evidence that the defendant was guilty of either degree of murder, they could find him guilty of manslaughter. This doctrine is not warranted by the rule that a verdict for an inferior grade will not be set aside because the evidence showed a higher grade of offense. See the opinion on the question.</p> <p>4. Same—Self Defexsb.—That a party whose person is unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant is made by Article 573 of the Penal Code a part of the law of