25 S.W. 772


COLEMAN
v.
STATE.


Court of Criminal Appeals of Texas.


March 28, 1894.

Appeal from district court, Freestone county; Rufus Hardy, Judge.

Josh Coleman was convicted of an assault with intent to commit murder, and 
appeals. Affirmed.

R. L. Henry, Asst. Atty. Gen., for the State.

HURT, P. J.

It appears that appellant was insisting upon a girl going with him to a dance. 
She expressed an unwillingness to go. The prosecutor, Dixon, stated to her that, 
if she did not want to go, she need not do so, whereupon appellant remarked: 
"What is it to you, you damned Alabama son of a b____h?" Dixon replied that an 
Alabama son of a b____h was not afraid of a Texas son of a b____h. Appellant 
requested Dixon to repeat what he had said. He did so. From this point on, the 
evidence is not harmonious. Two or three witnesses stated that, when Dixon 
repeated what he had said, appellant shot at him. The other witnesses stated 
that, when he requested Dixon to repeat what he had said, appellant began 
drawing his pistol, and did not shoot until Dixon was in the act of getting the 
gun. If either of these theories be true, appellant was evidently guilty of an 
assault with intent to murder. Appellant, however, swears that he did not fire, 
or attempt to fire, till Dixon was reaching for the gun. He does not deny that 
he drew his pistol before Dixon started for the gun. Upon the theory presented 
by the defendant's testimony, the court charged the jury: "If, however, the 
said John Dixon was making an unlawful attack upon defendant before the 
defendant made any hostile demonstration towards said Dixon, and it reasonably 
appeared to the defendant, from all the circumstances and surroundings, that it 
was necessary to shoot at said Dixon in order to protect himself against said 
Dixon's assault, and that the shooting on defendant's part was done by defendant 
only because he feared impending danger from Dixon, then you will find the 
defendant justified on the ground of self-defense, and not guilty. If, however, 
the defendant began the difficulty by first drawing his pistol, or attempting to 
draw it, with an apparently hostile intent, before any hostile movement by 
Dixon, he could not be justified on the ground of self-defense (since in such 
case Dixon would have had the right to resort to violence to protect himself), 
even though defendant might have reasonably believed, at the time he shot at 
Dixon (if he did), that his own life was in danger." Under the facts of this 
case, this charge contains all the law to which defendant is entitled. That 
Dixon sprang for the gun, and would have shot the defendant if he could, may 
all be true; but his acts in this matter were made necessary to his own 
preservation by the conduct of defendant, for, when the appellant accompanied 
the request for Dixon to repeat what he had said by drawing his pistol, Dixon 
was perfectly justifiable in springing to the gun. The judgment is affirmed.