McCullers v. State

The state's motion for rehearing is predicated on the proposition that the paragraph of the charge quoted in our original opinion, when considered in connection with the instructions as a whole, should not be held erroneous to the extent of demanding a reversal of the judgment.

Ill feeling had been engendered and hard words exchanged between appellant on the one side and deceased and his son, Trannie Cash, on the other. The cause of contention at the time of the homicide was regarding the gathering of cotton. Appellant went with a shotgun to the field where deceased and Trannie were picking cotton. Trannie saw appellant coming when he was still 400 yards away, went to the house and returned with a shotgun and pistol. When he got back appellant was walking along talking to deceased about the cotton. Trannie's version of the tragedy, stated in a few words, was that as he (Trannie) approached, appellant stepped off some twenty steps and changed the shells in his gun, and that, fearing appellant was going to shoot either himself or his father, he (Trannie) fired at appellant, who returned the fire, directing the first shot at deceased and the second at Trannie. Appellant's version was that he saw Trannie approaching with a gun in a manner as though slipping up on some one; that he then changed the shells in his gun, at the same time requesting deceased to tell Trannie to stop, as he (appellant) wanted no trouble; that he then stepped off some twenty steps and deceased told Trannie to shoot the s _____ of a b _____; that then Trannie fired at appellant; appellant then fired, first at Trannie and then at deceased.

The court told the jury in substance that if deceased and Trannie Cash were acting together to take the life of appellant and that just before appellant shot deceased Trannie Cash had *Page 361 made an unlawful attack on appellant he would be justified in acting upon a reasonable apprehension of danger, as it appeared to him from his standpoint, at the hands of either deceased or Trannie, and that if he killed deceased under such circumstances the jury should acquit him. Having by this charge made appellant's right depend upon an unlawful attack of Trannie, the court immediately followed it by the charge quoted in our original opinion, the effect of which was to tell the jury that Trannie's attack would not be unlawful if, when he fired at appellant, the latter was doing something which caused Trannie to have a reasonable apprehension that his father was in danger at the hands of appellant, thereby shifting appellant's right and making it depend, not on his own viewpoint at the time, but on the viewpoint and apprehension of Trannie.

A further analysis of the defensive charge, in connection with the one complained of, rather confirms us in the view expressed originally. Remaining of the opinion that the proper disposition was made of the case, the state's motion for rehearing is overruled.

Overruled.