dissenting.
I am compelled to dissent to the reasons the majority gives for overruling appellant’s contention that the trial court erred in refusing his requested charge that if he had the right to act in self-defense and open fire on the deceased, he had the right to continue shooting until all the danger to his life had passed.
Without stating why “it is doubtful that appellant was entitled to the requested instruction,” the majority concludes that the requested charge “was repetitious in effect of that given in the main charge [on self-defense],” thus enabling it to overrule appellant’s ground of error.
I will agree that where the evidence raises the defense of self-defense, and the trial court has correctly instructed the jury on the law of self-defense, counsel for the defendant is permitted to argue to the jury that the defendant had the right to continue shooting his adversary, though the mortal wound may have already been inflicted. However, I am unable to agree that such an instruction, standing alone, is sufficient to protect the right of the defendant to receive a fair trial in accordance with due process and due course of the law.
As we all know, jurors usually give great deference, as they should, to the remarks that a trial judge might make during the course of a criminal trial. When it comes to the jury charge, experience also teaches us that jurors invariably pay extremely close attention to what the trial judge states is the law of the case and the law as applied to the facts of the case. Without an instruction on the right to continue shooting, when the defendant had the right of self-defense to shoot in the first place, I believe that it is asking too much of a juror to depend upon what counsel for the parties might argue is the law. Furthermore, I believe it is reasonable to assume that the average person, though he might believe that the defendant had the right to shoot another person in self-defense in the first place, would probably question whether that right gives the defendant the additional right to continue shooting his aversary until the danger or apparent danger has ceased, or as long as it reasonably appeared to the defendant, as viewed from his standpoint at the time, that he was still in danger.
Therefore, I am unable to agree that such an additional instruction, on the right to continue shooting, is repetitious and unnecessary to protect the right of the defendant to receive a fair and impartial trial. I therefore respectfully dissent.