Bertrand v. State

BEAUCHAMP, Judge. The appeal is from a conviction for murder, with a life sentence in the penitentiary. The evidence in the case is sufficient to support a conviction for murder with malice. The statement of facts in this case is remarkable in that all of the evidence from the witnesses called by both state and the defense is in perfect harmony as to all material facts. The scene was a regular gambling room in connection with a restaurant, over which was a hotel, in the less pretentious area of Port Arthur. It was a place to which the witnesses and others commonly resorted for the purpose of playing poker. On the night in question the owner of the place had retired, prior to the homicide, and appellant was left in charge. The deceased, a young man described as having a very powerful physique, came into the place about midnight while some of the witnesses were gambling but before others had entered the game. He presented a hundred dollar bill and purchased fifty dollars worth of chips. Soon his supply of chips was depleted and he purchased thirty dollars more. Finally, with twenty dollars in his pocket and twelve dollars and thirty cents worth of chips, he wanted to cash a check. Appellant referred his request to the owner of the place, whom he called from his bedroom. The proprietor of the place attempted to by-pass his request to cash the check. Deceased became enraged and beat the pro [282] prietor up with his fists and turned on an older man, knocked him down and, if we understand the evidence on the subject, he knocked down at least another. Appellant remonstrated with him and he turned to attack him asking the question if he desired some of it. The statement this far is made by practically all of the witnesses. All of the evidence is to the effect that there was no drinking going on in the place and no one was under the influence of intoxicating liquor, unless it was deceased who had drank some beer prior to entering the game. Appellant testified in his own behalf that he shot the deceased in self-defense. He said: “I shot the man because the man I figure, was dangerous to my life, what I had seen, what he had done for the other people. At the time I shot him he had hit me in the temple on the side of my head and right here in my stomach. The first lick is when he knocked my glasses off and he layed me on the second table and when I got up on my feet from the table, the first lick, as soon as I got on my feet, that’s when he struck me here in my stomach, and I started backing away from the man, and I started begging him not to hit me, * * * and he kept coming, and I said, ‘If you don’t stop I am going to shoot you,’ and the man didn’t seem to stop, * * *.” He said that he shot him because that was the only way to make him stop; that he was afraid the man was going to beat him to death, because he was a much larger man than appellant; that he thought he was going to have to shoot him to save his own neck and that he shot him when the deceased got upon him (the appellant). On re-direct examination he said: “I told the jury that when I shot the man he was still coming on me and I was begging him not to come on me that I was sick, and I am still a sick man.” Appellant was dissatisfied with the court’s charge on self-defense because it limited his right of defense in that it required the jury to find that he had used no greater force than was necessary. He presented a proper charge with the request that it be submitted and this the court refused to give, as shown by Bill of Exception No. 3. The complained of paragraph of the court’s charge reads as follows: “You are instructed that every person is permitted by law to defend himself against any act of unlawful violence offered to his person, but in exercising his right of self-defense he is only permitted to use such degree of violence as is reasonably [283] necessary to prevent or protect himself against such unlawful attack, and you will view the facts and circumstances from the standpoint of the defendant. Now if you believe from the evidence, or if you have a reasonable doubt thereof, that the defendant in inflicting injury upon the said H. C. Edgerley, if he did so, as charged in the indictment, acted in his own necessary self-defense, as it appeared to him, against an assault made by the said H. C. Edgerley upon him, or to prevent such assault, and that he, the defendant, did not use greater force than was necessary to prevent such assault as it appeared to him, then you will find him Not Guilty. In this connection you are instructed that the defendant is not bound to retreat to avoid taking the life of his assailant.” Appellant was entitled to a charge on self-defense unrestricted, by reason of the foregoing quoted evidence. See Ashworth v. State, 148 Tex. Cr. R. 561, 189 S.W. 2d 875, and authorities therein discussed. We have considered the other bills of exception and fail to find any error reflected by them. Because of the error in the court’s charge, the judgment of the trial court is reversed and the cause is remanded.