Simons v. State

In his motion for a rehearing, appellant contends that in the original opinion in this case we erred in two respects: First, in holding that the court's instruction on the law of self-defense, although not technically correct, would not require a reversal of the judgment because the issue of self-defense was not raised; and second, because the court failed to comply with appellant's request to instruct the jury that if appellant went to the home of his mother for the purpose of quelling a disturbance and to eject the disturbing parties therefrom, he had the right to use such force as appeared to him to be reasonably necessary to accomplish that object.

We do not deem it necessary to again enter upon an extended discussion of the first question presented. There is no testimony in the record which, in our opinion, even meagerly raises the issue of self-defense. Appellant testified that the deceased struck him on the arm with a stick; that he took the stick away from the deceased, who then stood there; that while standing there appellant told deceased to leave and when he failed to do so, appellant struck him. We quote from the appellant's testimony as it appears in the record:

"I was just trying to get him quiet. If he had gone on like I asked him to and quit cursing, I would not have hit him * * * He didn't try to do nothing. I could not tell whether he had a knife or gun or anything."

If appellant struck the deceased while he was standing there doing nothing and that he would not have struck him if he had gone away, then it follows that appellant struck the deceased because he would not leave and not because of any real or apparent danger to himself. Consequently when the court gave appellant any kind of a charge on self-defense, he gave him more than he was entitled to. Of course, had the issue of self-defense been raised by any evidence or by the testimony *Page 466 of some other witness, then appellant, nevertheless, would have been entitled to a proper instruction on the law of self-defense; but such is not the case here.

Appellant was not entitled to the second requested instruction. The disturbance which appellant claims he wanted to quiet did not take place on his premises nor where he lived, but upon the premises of his mother. He had no legal right to make any one leave unless requested to do so by his mother; and according to his testimony, she did not ask him to do so, nor did she complain of the disturbance. If she was satisfied, then certainly he would not have any right to complain. He had no more legal rights there than anyone else. His mother could have made him leave as well as any other person had she so desired.

Believing that the proper disposition of this case was made on the original submission, as reflected by the opinion of this court, the motion for a rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.