Rutland v. State

During the last term of this court an opinion was rendered affirming the judgment herein. A vigorous motion for rehearing has been filed and ably presented to this court by brief and oral argument. *Page 120

The main contention by appellant is that he was deprived of a fair and correct charge on the law of perfect self-defense. As we understand this record the court's charge to the jury was more than favorable, and if there was error, such error as may have been committed was in his favor in submitting the issue of perfect self-defense in any form. Taking appellant's theory of the case as set out by his motion for rehearing, as well as in his original submission, and statements of the testimony as found in the original opinion, it seems to exclude the idea of perfect self-defense. There had been previous trouble between the parties. Omitting, so far as the question of self-defense is concerned, the testimony of the State, which by the way was in direct conflict with that for the appellant, we find that appellant states that he understood or thought and was led to believe that deceased was following him with a view of executing a threat to take his life or do him serious bodily injury; that he placed himself in a doorway, and as deceased approached he stepped out and presented his pistol at deceased and took a pistol from him; that he then marched deceased to the jail with the statement, substantially, that they would go to the jail, see the sheriff and enter into peace bonds. When they arrived at the jail he called for the sheriff, Mr. Bradford. Mr. Bradford's wife answered, stating that he was not present. Appellant says that deceased then said he would go inside of the jail, leaving the impression upon appellant's mind that he would go in and arm himself and come back. Appellant refused to let the deceased leave, and ordered him to remain where he was, which the deceased did, and appellant contends deceased turned towards him and reached or made a move with his hand as if to reach him and he shot him. He says he thought deceased was going in the jail to get a pistol and kill him and, therefore, he shot. Mrs. Bradford testified directly in opposition to what the appellant stated, saying that deceased did nothing and was not reaching out his hand, and was standing still at the time appellant shot him, and that appellant stated before he shot that he was going to kill him; that she importuned but he fired, and as deceased was falling she caught him and appellant undertook to shoot him again, snapping his pistol two or three times at the back of deceased. Omitting, however, Mrs. Bradford's testimony and taking that of appellant as presenting his viewpoint of perfect self-defense, we find that he had an unarmed prisoner, one from whom he had taken a pistol, and emphasizes this fact by stating that deceased said to him he wanted to go in the house and as appellant thought to get a pistol. There could be then, under appellant's viewpoint of it, nothing to indicate to his mind that deceased was armed or was in a position to shoot him. He was appellant's prisoner, under control and under arrest, and whether that arrest was legal or illegal it occurs to us would make no difference, viewed in the light of self-defense. He had no right to shoot the man whether he had him under arrest legally or illegally under the *Page 121 facts. That the movements of deceased in attempting to go into the house to secure a weapon for the purpose of shooting appellant would afford no reason for perfect self-defense we think has been settled by numerous decisions. We mention Lynch v. State, 24 Texas Crim. App., 350. The matter there is pretty fully and rather exhaustively discussed in an opinion by Presiding Judge White. There are numerous opinions by this court following the Lynch case. In 40 Tex.Crim. Rep. is Bush v. State, which follows and reaffirms the doctrine laid down in the Lynch case. The Bush case was approved in Snell v. State,52 Tex. Crim. 305; Mitchell v. State, 51 Tex.Crim. Rep.; Bryant v. State, 51 Tex.Crim. Rep.; Rowe v. State,55 Tex. Crim. 132; Franks v. State, 54 Tex.Crim. Rep.; Toliver v. State, 53 Tex.Crim. Rep.; Courtney v. State, 57 S.W. Rep., 625; Herrington v. State, 63 S.W. Rep., 563. Those cases are largely predicated upon the proposition that the danger must be immediate and not remote. In this case there could have been no immediate danger that appellant would be killed by deceased. He was not armed and when he started towards the house for the purpose of getting a pistol, as appellant understood, appellant prevented his going. Appellant was in no danger at the hands of deceased, from his own testimony, of being either killed or his body suffering serious injury. It is not thought necessary to further discuss than was done in the original opinion the question of arrest. It would make no difference under the law of self-defense, under the circumstances of this case, whether he was or was not under legal arrest. He had not placed from any viewpoint the appellant in danger of life or serious bodily injury, either actual or apparent. The mere fact that he extended one of his arms in the direction of appellant would not indicate that appellant's life was in danger or his body of serious harm. Disregarding then the State's theory of the case and taking appellant's view of it as testified by himself, the law of perfect self-defense we think was not suggested. It would not serve any useful purpose to discuss further any question growing out of the facts bearing upon this question. Self-defense not being in the case, of course the law of retreat is not necessary to be discussed. Viewing this record as we do, and the evidence as disclosed in the statement of facts, we are of opinion that from appellant's viewpoint the question of perfect self-defense was not an issue, and the charge given was favorable to appellant and one to which he was not really entitled. We hold therefore that appellant cannot successfully urge error.

The motion for rehearing will, therefore, be overruled.

Overruled. *Page 122