Downs v. State

¶1dissenting. From a' careful examination of all of the evidence I am unable to find any facts upon which to base the theory that the deceased and his companion, Whittington, intended or were endeavoring in a riotous and tumultuous manner, to enter *441the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein, as contemplated in the Penal Code, § 70. From all of the evidence it seems to me that the only theory authorized is that Calhoun (the deceased) and Whittington went to the home of Downs for the purpose of taking Downs to task for some remark attributed by Downs to Calhoun concerning Whittington’s sister. When Calhoun and Whittington went to the home of Downs, the defendant, they made no effort to enter, but stopped on the outside and “hailed” for the purpose of calling the defendant out. At no time during the interview, or throughout the difficulty, does the evidence show any effort or intention on the part of the deceased and Whittington to enter the dwelling-house. They were repeatedly endeavoring to induce the defendant to come out to meet them on the outside and to go down the road with them. In fact the evidence seems to indicate that most of the time during the angry meeting the deceased and his companion, Whittington, were standing across the road from the house. In these circumstances I do not think that the judgment refusing a new trial should be reversed for the reasons stated in the majority opinion, divisions 3 and i. This is especially true in view of the fact that no request was made to the court to charge or instruct the jury on the subject, upon the failure to do which error is now assigned.