Reed v. State

Citations

• 11 Tex. Ct. App. 509

Syllabus

<p>1. Severance.—The Code of Procedure, article 649, provides that a severance may be had by any one of several defendants jointly prosecuted; and, if the severance is sought for the purpose of obtaining a co-defendant’s evidence, it is required that the applicant file his affidavit stating that fact and that the evidence of his co-defendant is material to his defense, and further alleging that there is no evidence against the co-defendant. Literal adherence to the language of the Code is not necessary in the affidavit, and it is sufficient if it substantially complies with the requirements prescribed. In the present case the applicant swore that he “verily believed” there was no evidence against the co-defendant, and this is held sufficient.</p> <p>2. Same.—But the, allegation that there is no evidence against the co-defendant may, it seems, be controverted by the State; and a previous trial and conviction of the co-defendant would be sufficient, prima facie, to rebut the allegation, and to authorize the trial court to disregard the affidavit, unless the conviction had been reversed on appeal because of the want of evidence against the party.</p> <p>3. Self-Defense.—In a trial for murder the court charged the jury that an adulterer, caught in the act of adultery, has no right to resist an attack made upon him by the husband. Held, that the instruction is erroneous because it deprives the slayer absolutely and entirely of all right of self-defense, regardless of the legal principles which, while according that right plenarily to him only who acts from necessity and is himself without fault, do not wholly deny it to him who, when caught in the perpetration of a misdemeanor and assaulted by the person aggrieved thereby, kills the latter to save his own life. Adultery is only a misdemeanor in this Stat^, and therefore the instruction given to the jury transcends the law. See the opinion in extenso on the distinction between the perfect and imperfect right of self-defen