Wheelis v. State

Citations

• 23 Tex. Ct. App. 238
• 5 S.W. 224
• 1887 Tex. Crim. App. LEXIS 58

Syllabus

<p>1. Practice—Eve Witnesses—Oases Explained.—It was not held in the cases of Hunnicut v. The State, 20 Texas Oourt oi Appeals, 682, and Phillips v. The State, 22 Texas Oourt of Appeals, 139, that the State must ih every case introduce all the eye witnesses of the res gesta. As laid down in the latter ease, this is a matter within the sound discretion of the trial court, though there may be cases in which the requirement should be made.</p> <p>2. Self Defense—Charge of the Court—Case Stated.—In a trial for murder this appellant was convicted of manslaughter upon evidence which showed that the deceased, as appellant knew, had threatened to kill him if he should ever speak to him, and that, the deceased having dropped some coins, the appellant spoke to him and called his attention to one of them; whereupon the deceased, calling appellant a d—d son of a bitch, replied that he had told and sent him word not to speak to him. Appellant, saying “all right,” went out of the back door of the house, and then called to him a relative of the deceased, and in their ensuing conversation said he could “not stand this,” and that he would “kill him.” Deceased, still in the house, commenced whittling, and was apparently listening, and soon, closing his knife and putting it in his pocket, walked towards where appellant was, and when he got about a third of the way, he took his knife out of his pocket and seemed to be opening it. Proceeding to and having passed out of the back door, he was shot and killed by appellant. A pocket knife, partly open, lay close by deceased on the ground, after he was shot. The trial court did not give in charge to the jury the law of self defense, and rejected a requested instruction on that subject. Held, that the evidence fairly raised the issue of self defense, and the defendant was entitled not only to have all relevant circumstances, whether anterior to or contemporaneous with the killing, put in evidence, but also the law of self de fense given in ch