Edens v. State

¶1 (Concurring).—Appellant reserved an exception to the court’s charge, because, as alleged, it required the jury to believe from the evidence that the facts existed which authorized defendant to act on self-defense before they could acquit him, and that there is nowhere coupled with said charge on self-defense that, if the jury had a reasonable doubt as to the existence of said facts, they would give defendant the benefit of the reasonable doubt, and acquit him. I have carefully examined said charge, and in my opinion, it is in the condition claimed by appellant. In this connection appellant refers us to the following authorities: Johnson v. State, 29 Texas Crim. App., 150; Moore v. State, 28 Texas Crim. App., 377. I have examined said cases, and, in my opinion, they support appellant’s proposition, especially the case of Johnson v. State. In opposition to this we are referred to Powell v. State, 28 Texas Crim. App., 393. Both opinions were written by the same judge, though there is no mention of Powell’s case in the last opinion. In Powell’s case the court held that a charge submitting an affirmative defense predicated on the belief of the jury, without coupling with it the reasonable doubt, was sufficient, holding that the general charge on reasonable doubt was adequate. In Johnson’s case the contrary was held. We quote from the opinion in that case as follows: “We think the paragraph [alluding to the charge] is subject to the exception that it requires the jury to believe from the evidence the existence of the conditions which entitle him to acquittal. … It is true, the learned judge gave the usual instruction as to the presumption of innocence and reasonable doubt, and ordinarily such instruction is suffi *527 eient; but in this case we do not think it was sufficient to correct and counteract the error in paragraph five.” Now, while I believe the opinion in Johnson’s case announces the better and safer rule, yet I am not prepared to say that the charge in this case was calculated to injure appellant. The jury were properly instructed in the court’s charge on murder in the first and second degrees and manslaughter, and told that before they could convict defendant they must believe the State’s case as to each offense beyond a reasonable doubt; and they were further instructed that, if they entertained a reasonable doubt as between said offenses, to give defendant the benefit of such doubt, and find him guilty of the lower grade of homicide. The jury were then instructed as to appellant’s defense, in effect, if they believed his theory of self-defense, etc., to acquit; and at the conclusion of the charge the court gave the usual instruction on presumption of innocence and reasonable doubt. It occurs to me that an intelligent jury would naturally apply the charge on reasonable doubt to appellant’s defense, especially as the reasonable doubt was coupled with each theory of the State’s case. I think the charge, taken as a. whole, was not misleading, or a reversal of the rule as to reasonable doubt; and was not calculated to injure appellant’s rights. I therefore concur in the opinion rendered.