Henry v. State

BEAUCHAMP, Judge

(dissenting on rehearing).

*294I am unable to agree with my associates in the disposition of this case. The question upon which reversal is here had was discussed in the original opinion, which I believe to be correct.

It is noted that the evidence held to be admissible by the majority opinion is based solely on the ground that reliance was had on self-defense. We mentioned the court’s charge on self-defense in the original opinion in a manner indicating our view, then and now, that it was a cautious act on the part of the court. I do not believe evidence was given which would require such charge. The fact that the court gave it, under this circumstance, would not make the additional evidence admissible unless it was required to be given in the charge. I think it was not, and I quote from the evidence on the subject given by the appePant himself, which is the only evidence that could form a basis for the charge:

“Now what McCarty said to me when he drove up there, and what I said to him: just as I stepped up on that curb, and I had just stepped on it, he hollered: ‘Tom, come here; I want to talk to you;’ I stepped back between my car and his to talk; he said ‘Come around on this side.” I said ‘No, you’re mad, Bath; I don’t want no trouble; I’m not able to fight you; I’m not coming around there,’ and he says ‘Well, God dam you, I can come around there.’ I says, “No, don’t come around here; I’m not able to fight you; I don’t want no trouble.’ What he then did: he got out of his car and come around the back way, he had a little lumber on the side, and he come around back end of his car, and I told him, I says, — and when he got around to the back end of his car, starting up towards me; I was up here near the front end of my car, and what I told him, — I said, ‘Stop, Bath, I tell you to stop.’ He just kept coming, in between my car and his car.

“He did not stop when I told him to stop; he did not let up at a1!. Then, what I did: I shot him, — I went to shooting to protect myself, — the only means I knew of to keep him from killing me. I WAS, at that time, afraid that he was about TO ATTACK ME; I had been afraid of him for a long time; ever since I was told I wasn’t able to fool with him; and I absolutely was afraid that an attack by McCarty at that time would result in my death. * * * From my knowledge of my physical condition I did fear that an attack by McCarty would likely produce death, — I say, from my knowledge of my heart condition, I did fear that an attack by McCarty would likely produce death *295to me, OR I WOULD NOT HAVE SHOT HIM ON THAT OCCASION." (Emphasis added.)

Furthermore, the jury found that he did not act in self-defense and I do not believe the additional evidence would have had any probative force, under his version, to have changed their verdict. He told why he shot and it was not because of this reputation of deceased.

From the foregoing, it would seem that his fear of injury from the deceased was not because of an act which deceased was threatening to commit, because there was no threat, either by word or action, only that he wanted to talk to him. .Other witnesses said deceased had his hands by his side and appellant does not deny this. As I see it, appellant says he shot because deceased was coming toward him — no weapon, no threat— solely because appellant had a heart trouble. To hold that this called for a charge on self-defense is inconsistent with the further holding in the original opinion, and in the majority opinion on rehearing, that the court was not required to give the requested charge relating to appellant’s physical condition.

There is no disagreement between us as to the law, in a proper case. The court should have declined to give the charge on self-defense, in which event there would be no basis for the majority opinion reversing the case. The fact that he gave appellant more than he is entitled to have in his charge does not, in my opinion, make it error to refuse to admit the evidence discussed in the majority opinion.

I respectfully dissent.