Garello v. State

SIMKINS, Judge. Judge.— Defendant was convicted of manslaughter, and sentenced to two years in the penitentiary, and appeals to this court. 1. The first error assigned is, that the court erred in permitting the district attorney to use the following language: “ He (referring to defendant) is from the sunny clime of Italy, where the Mafia flourishes, and the people band themselves together for the purpose of committing wholesale murder.” This language was improper. What bearing the Mafia had upon this case is not apparent from the evidence, and reference to it was intended to excite race prejudice, or it had no meaning. But, conceding such to be the intention, it is hardly to be supposed that statements of such a character would injure defendant before a jury of ordinary intelligence, and especially in a case like the one at bar, where both parties engaged in the difficulty were Italians; the only difference being, defendant was a small, and deceased was a large Italian. But it is to be regretted the district judge did not hear the remark, so as to have stopped the State’s counsel. As he did not, it devolved upon the defendant to call the attention of the court to the language, and re *62 serve an exception thereto, and also request instructions directing the jury to disregard the unauthorized statement of counsel for the State. This was not done. Mason’s case, 15 Texas Ct. App., 534; Jackson’s case, 18 Texas Ct. App., 586; Young’s case, 19 Texas Ct. App., 543; Kennedy’s case, 19 Texas Ct. App., 633. 2. Defendant excepted to the charge on self-defense as being too restrictive. The court charged, “If the deceased pursued and overtook defendant, and defendant, believing that deceased was about to take his life, or inflict serious bodily injury upon his person,” killed the deceased, he would not be guilty. That by the charge the court made the defendant’s right of self-defense to depend on his being pursued and overtaken, and did not allow defendant to turn and advance to meet the danger. We think the objection fully met by the other portions of paragraph 11, to the effect that if the jury find “ that the acts of the deceased, or his acts, coupled with his words, made it reasonably appear to defendant that deceased was about to take his life, or inflict serious bodily injury, he is not guilty.” 3. The court did not err in refusing the special charge asked by defendant. The third portion of paragraph 11 covered all the points in the special charge that should have been given. The court refused to charge directly that the jury could look to the great superior strength of the deceased as an element to be considered in defendant’s right of self-defense—still he charged the jury, “ they were to look at the surroundings from the standpoint of defendant.” This was sufficient. Again, it appears from the bill of exceptions, that there was no objection made or exception taken to the charge until after the verdict of the jury. The object of excepting to the charge, as stated in Bishop’s case (43 Texas, 390), is to give the trial judge an opportunity of revising his charge before the verdict is returned, and no general exception to the charge, or exception upon grounds suggested after the verdict, will meet the requirement of the statute to except at the time of trial. Code Crim. Proc., art. 685; Phillips’ case, 19 Texas Ct. App., 158; McCall’s case, 14 Texas Ct. App., 453; Bogan’s case, 30 Texas Ct. App., 466. 4. The fifth assignment of error presents the most serious question, “ the insufficiency of the evidence.” Two Italians had been together for several years; they owned property in common, and at the time of the difficulty were working together in a restaurant at Greenville. That day deceased had been drinking heavily, and at night came into the room where his employer and others were sitting, and where also defendant was seated near the stove. Deceased approached defendant and ordered him to get up and give him the chair. Defendant refused, and deceased at once knocked him down, or pushed him out of the chair into the corner of the room, and got down upon him and was choking him when the bystanders interfered and pulled him *63 off. Deceased was a strong, robust man, greatly exceeding defendant in size and strength, weighing 190 pounds, defendant weighing 110 pounds. One of the witnesses stated that the big Italian, a dish pan, and a box of crackers were all on the little Italian when lying in the corner; the latter two accidentally knocked down in the scuffle while pulling the deceased off the defendant. On being released defendant, stating “ he would get a policeman to arrest deceased,” started out of the room through a hallway; deceased followed him and struck at him, and kicked him, turning him half around, and knocking him against a table whereon lay a large knife used for cutting bread. Defendant seized the knife, and turning about, stabbed deceased and killed him. Such are the facts as we gather them from the record. To hold that an unprovoked brutal assault by one of great superior strength, who had already demonstrated his power and purpose to do great bodily injury, who was under the influence of liquor and reckless and angry, was pressing the assault, can not justify the assaulted party in resorting to the only accessible means of stopping it, is certainly infringing upon the inalienable right of self-defense. Penal Code, art. 572. We can not give our assent to this conviction, but will order a new trial. The judgment is reversed and the cause remanded. Reversed and remanded.