Full opinion text
RAMSEY, Judge. —This is the second appeal of this case. The opinion of the court and a full statement of the facts on the first appeal will be found in the 55 Texas Crim. Rep., 91. On the trial from which this prosecution is appealed, appellant was in the District Court of Burnet County, on June 5, 1909, found guilty of manslaughter, and his punishment assessed at confinement in the penitentiary for a period of five years. The case from its beginning has been one of the most notable and interesting that has ever been before this court, at least, since my accession to the bench. It has been the subject- of repeated argument by eminent and learned counsel, and also the subject of much discussion and sharp difference between the members of this court. As the former opinion will demonstrate, Judge Brooks dissented from the judgment of the court, reversing the case, and on this appeal, our learned Presiding Judge finds himself unable to agree to the disposition which will be made of the case. On account of the retirement of Judge Brooks from the bench, and the disqualification of Judge McCord, who had prosecuted the pleas of the State on the former appeal, the case was, quite a while ago, certified to the Governor, and a request for the appointment of a suitable person to sit with us in the disposition of the case, was made. Responding to that request, the Governor last spring appointed Hon. Thomas B. Love, of Dallas, who, with the court, heard a reargument of the case at length, and it has since then received the individual attention of every member of the court, and has been the subject of careful and thorough examination in consultation. From the beginning, I have had no doubt that the judgment of conviction ought to be affirmed. An inspection of the opinion on the former appeal will disclose the fact that Judge Davidson and myself agreed that, except for the error of the court in declining to order an autopsy and an examination of the body of the deceased, which it was- thought would discover and disclose the true facts, that there has been no error committed by the trial court justifying a reversal. After the case was reversed on this ground it was retried, as I believe, in substantial, if not indeed, strict conformity to the decision of this court on the former appeal, and notwithstanding the earnest insistence of counsel to the contrary, my view has been unchanged that the record is practically without an error, and that no reason or excuse is found in it to set aside the verdict and judgment of the court below. In view of the importance, however, of the case, and out of deference and respect to the learned counsel who have, with great vigor and commendable zeal, prosecuted the appeal before this court, we feel that it should receive rather fuller treatment than any merit or difficulty in the case might ordinarily suggest. There are in the case, two questions of substance presented in the record. The first is a question of fact, and that question is whether or not the issue of provoking the difficulty was raised by the evidence. If this should be answered in the negative, then we are all agreed that the case must and should be reversed. The majority of the court hold, as we all agreed on the former appeal, that the issue of provoking the difficulty is in the case. This was held on the former appeal. Judge Brooks, in his dissenting opinion in the case, went to the extent of holding that the facts and circumstances showed, without dissent or question, that he was guilty of provoking the difficulty, and there was virtually no dispute in the facts on this question. This, in substance, too, was the holding of the Court of Civil Appeals in his case, in that court growing out of the same facts. (117 S. W. Rep., 870). Without going into further detail on this matter, we hold that the issue of provoking the difficulty was clearly raised by the facts, and that the court did not err in submitting that question to the jury. The next question of importance raised on the appeal, grows out of and is based on, the 13th paragraph of the court’s charge. This paragraph is as follows: “You are instructed that if you find from the evidence in this case, beyond a reasonable doubt, that the defendant went to where the deceased was killed, and by his own wrongful act (if any there was), brought about the necessity of killing the deceased, Will Phillips, and that defendant provoked a difficulty with said Will Phillips, with the wrongful and wilful intention to take the life of deceased, or inflict upon him serious bodily injury, and you further find that the defendant knowingly and wilfully, and with the specific intention and with a view thereto, used toward deceased language, or did acts, or did both, for the purpose of causing deceased to attack defendant, that he might have a pretext to kill him or inflict upon deceased serious bodily injury, and you find that such language or conduct or acts, on the part of the defendant (if any such there was on the part of defendant) was reasonably calculated to bring on the difficulty, and cause the deceased to attack the defendant, and you further find from the evidence, beyond a reasonable doubt, that the defendant, in pursuance of a wrongful, wilful and previously-formed design to provoke a difficulty with deceased for the purpose, and with the intention of killing him or inflicting upon him serious bodily injury, and jrou further find from the evidence, beyond a reasonable doubt, that intentionally, and with a view thereto, he shot with a pistol and thereby killed deceased, then you are instructed that the defendant’s plea of self-defense will not avail him in this case, and if you so find from the evidence, beyond a reasonable doubt, the homicide would be manslaughter, under the law herein given you in this charge.” Exception was taken to this paragraph of the court’s charge, because (a) said charge is confusing and misleading; (b) because the jury were therein and thereby instructed that if the language used by defendant, if any, was reasonably calculated to bring on a difficulty, the defendant would forfeit his perfect right of self-defense, whether such language did or did not in fact bring on the difficulty; and (c) the appellant being on trial only for manslaughter, the language in said charge suggests to the jury that the defendant might be guilty of a higher grade of homicide, thereby causing the jury to inflict on appellant the maximum penalty for manslaughter; and (d) the jury are instructed, in effect, by said portion of said charge, that the appellant’s plea of self-defense would not avail him if the jury believed that the intention of the appellant was to provoke a difficulty, and with a view thereto, he did shoot and kill the deceased, whether the appellant did or not, in fact, provoke the difficulty; and (e) the jury are in effect instructed by and in the last clause or paragraph of said charge, that if the appellant intentionally, and with a view thereto, shot and killed deceased with a pistol, his right of self-defense would be cut off. There is in the brief filed on behalf of appellant, and this was most strongly urged on argument, the further proposition that if the difficulty was provoked by appellant intentionally and deliberately, with the intention of taking the life of deceased, that his act in killing him, under the law, would be murder and not manslaughter; and the further suggestion is made that since he had been acquitted of both murder in the first and second degree, that this instruction was both erroneous and harmful. It is not certain that this last proposition is clearly raised in the motion for a new trial, but in the disposition we shall make of the case, we shall treat the case as if this point were sufficiently raised. This last proposition is the only one that we care to notice at length. We think, since appellant had been acquitted on the former trial, of both murder in the first and second degree, and since neither murder in the first or second degrees were mentioned to the jury, or defined, or any mention made of tliem, that the effect of this paragraph of the court’s charge was merely to instruct them with reference to the circumstances under which he would be deprived of his perfect right of self-defense, and that the concluding clause of the paragraph of the charge criticized, “and if you so find from the evidence, beyond a reasonable doubt, the homicide would be manslaughter under the law herein given you in this charge,” might be rejected as surplusage, and as having no proper relation to the case, and without effect and without injury. But if this is not true, then clearly under the settled rule of law in this State, appellant is without just cause of complaint. This question came before this court very soon after I became a member of it, was made a matter of careful consideration and debate among us, and was definitely settled in the case of Cornelius v. State, 54 Texas Crim. Rep. 173. In that case in an unanswerable argument, Judge Brooks laid down the rule clearly that there was no constitutional inhibition against using what is ordinarily denominated murder evidence to convict one of manslaughter. In the course of this decision, he uses this language: “Appellant in this case had, on a previous trial, been acquitted of the two degrees of murder, and upon this trial was convicted of manslaughter, and his insistence, as stated in the bill, is that the evidence showing nothing but murder in the first or second degree, that he is entitled to an acquittal, and cites us to the case of Parker v. State, 22 Texas Crim. App., 105, and Fuller v. State, 30 Texas Crim. App., 559. This question has also been before this court in the case of Turner v. State, 41 Texas Crim. Rep., 329; 54 S. W. Rep., 579, and Pickett v. State, 43 Texas Crim. Rep., 1, 2 Texas Ct. Rep., 722. Also in other cases. In view of the confusion growing out of the rendition of said opinions, we deem it necessary to review the question presented in the light of the Constitution and laws of this State. Section 10, of the Bill of Bights, provides, that a defendant in all felony cases shall have an indictment preferred against him by a grand jury, which indictment must show the nature and cause of the accusation against him, and he is entitled to a copy thereof. Section 14, of the Bill of Bights, provides, that “no person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty, in a court of competent jurisdiction.” Judge Hurt, in the case of Hirshfield v. State, 11 Texas Crim. App., 207, in passing upon the words “same offense,” in the last cited article of the Constitution, uses this language: “Under the Constitution, no person shall be twice put in jeopardy for the same offense. What is meant by the term ‘same offense ?’ Does it mean the same offense eo nomine, or the same act or acts ? Let us consult our Code. From it we learn that an offense is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed by this Code. ‘An act forbidden,’ etc. From this we are not to infer that a single act in every case constitutes an offense. These, however, under this definition, are considered the act which is forbidden or punished by law. To these acts or omissions, the Code, in most of the cases, has given names. This, however, is conventional. To the act constituting larceny under the common law, the Code gives the name of theft. But back to the proposition. The Constitution prohibits placing a citizen twice in jeopardy for the same offense. Is the name given to the act or acts which constitutes the offense to control, when we are seeking to determine whether it be the same offense or not, or must we not look to the act or acts, or the omissions prohibited and punished by the Code, in order to determine this question? We must, in determining whether they are the same offense or not, look to the act, acts or omissions; for these, and not the name by which they are called or denounced by the Code. We, therefore, conclude that a person shall not be twice put in jeopardy for the same act, acts or omission, which are forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed in the Coded See along the same line Adams V. State, 16 Texas Crim. App., 162. Then, under an indictment for murder, what is the act, acts or omission that appellant is being tried for? It is the homicide; it is the killing. If he is acquitted of the killing, that is, any and every form of unlawful homicide, by a verdict of the jury, there is a constitutional inhibition against a new trial for said act, omission or offense. In other words, the Constitution does not contemplate that appellant can invoke the same unless he has had a jury to say by a verdict in the court of competent jurisdiction, that he is not guilty of any personal violence to another, where he is indicted for murder. In other words, there is no constitutional inhibition against using what is ordinarily denominated murder evidence to convict one of manslaughter. If murder in the first and second degrees and manslaughter are different offenses, within the contemplation of the Constitution of this State, then under the first cited clause of the Constitution one could not be tried for murder and convicted for manslaughter, since the Constitution provides that he must have an indictment, which indictment must state the nature and cause of the accusation against him. If murder is a distinct offense within the contemplation of the Constitution, then one could not be legally indicted for murder and tried for manslaughter any more than he could be indicted for burglary and tried for arson. He must have an indictment charging the nature and cause of the accusation against him. The degrees of homicide are not distinct offenses, but are merely grades of one common offense, to wit: homicide. Before appellant could ask the charge above quoted, we would have to hold that one could be indicted for murder and tried for manslaughter. If appellant, as stated, has a jury to return a verdict of not guilty under an indictment for murder or manslaughter, then he can plead this in bar of his subsequent prosecution, for the grade of offense for which he is so indicted, but upon the trial of a case of murder, where the jury returns a manslaughter verdict, and it returns for a new trial by reason of reversal or otherwise, it is a denovo trial, inflicting upon appellant the punishment for the grade of the offense of homicide of which he had been previously acquitted, but there is neither constitutional nor statutory inhibition against using the same evidence to prove the homicide upon the subsequent trial, and the conviction of appellant of any lower grade of homicide than that of which he had been previously acquitted. Article 762, of the Code of Criminal Procedure, reads as follows: Tf a defendant, prosecuted for an offense which included within it lesser degrees, be convicted of an offense lower than that for which he is indicted, and a new trial be granted him, or the judgment be arrested for any cause other than the want of jurisdiction, the verdict upon the first trial shall be considered as an acquittal of the higher offense but he may, upon a second trial, be convicted of the same offense of which he was before convicted, or any other inferior thereto.’ This is the only inhibition against a homicide trial in this State, where a new trial has been granted, the trial thereafter being in every instance denovo. Were it not for this statute, every trial for homicide under the Constitution of this State would be a denovo trial, regardless of the previous verdict of the jury, since, as we have seen, there is no constitutional inhibition against the same being a denovo trial for every grade of the offense, but the inhibition is simply statutory. It will be seen from reading the above cited article, that it only inhibits the penalty for the grade of offense for which he had been acquitted from being imposed in the second trial. If appellant, on the first trial, is acquitted of murder, how could he be convicted upon a subsequent trial for manslaughter, upon evidence that only suggests murder in the first or second degree, without using the evidence that was introduced upon the first trial, in the subsequent trial? We know, in practice, that the State insists upon getting the witnesses who are cognizant of the facts; having secured said witnesses, they introduce them on the trial in- the first instance.' It is left to the judgment of the jury in the first instance, to find appellant guilty of either murder in the first or second degree, or manslaughter. Then the identical same evidence is alone the proof thát the State can adduce upon the second trial, and this statute recognizes that fact, and says that upon the second trial he can not be punished for the grade of offense of which he has been acquitted, but can be punished for the saíne or any lower grade of which he has been previously convicted. When a party is indicted for murder under that form of criminal pleading, he can be convicted of any grade of culpable homicide, thereunder. This conclusion is fortified by subdivision 9, of article 817, of the Code of Criminal Procedure, which reads as follows: ‘Where the verdict is contrary to the law and evidence. A verdict is not contrary to the law and evidence, within the meaning of this provision, where the defendant is found guilty of an offense of inferior grade to, but of the same nature as the, offense proved.’ This statute is in line with the reasons above stated, and precludes any other conclusion than that the evidence in each instance can be used to convict of the lower grade of offense, regardless of the previous verdict. If a party can not get a new trial on the ground that he had been convicted of a lesser grade of offense than he is guilty of, then it follows as night follows day, that you can use murder evidence to convict one of manslaughter. If murder is a distinct offense from manslaughter, and not merely a different grade of homicide, an acquittal of a grade of murder is an acquittal of manslaughter, then, under the Constitution of this State, you could not use murder evidence to convict for manslaughter, hut they are not different.offenses within the contemplation of the Constitution, but, as stated above, simply grades of one common offense, to wit: homicide. Furthermore, the decisions of this State have uniformly enforced the provision of the last cited article, and held that where one is being tried for an offense which contains grades, and he is acquitted of the higher grade, and convicted of the lesser one, that he can not come to this court and ask a reversal of the case on the ground that the evidence does not support the lesser grade. The authorities are so numerous on this question, we do not deem it necessary to cite them. If the grades of homicide are different offenses within the contemplation of the Constitution, why can not appellant complain that he is convicted of a lesser grade than he was charged with by evidence that only proves the higher grade ? Certainly, if one’ was indicted for murder, and convicted of disturbing the peace, it would not be any answer to his motion for a new trial to say that he had been punished for a lesser offense than he was guilty of under the evidence. We would promptly reply to that character of motion that he had been convicted of an offense of which he had no indictment against him, and it is only one theory and one theory alone that you can indict a man for murder and convict him of aggravated assault, and that is on the legal and constitutional theory that an indictment for murder includes within its legal scope, all grades • and character of unlawful violence to the person of another, and the different penalties attached to the different grades is not a reason for saying that there is an inhibition in the statutes or Constitution of this State against using evidence of the higher grade to convict of the lower. Burnett v. State, decided at the present term, and not yet reported. We accordingly hold that appellant’s charge was not correct in law, and the court did not err in refusing to give same; and we further state that to whatever extent any decisions conflict with the views herein" stated, they are hereby overruled.” The same general question came before the court also earlier in the case of Burnett v. State, 53 Texas Crim. Rep., 515, where the court used the following language: “There has been, on this question and kindred questions, a number of opinions rendered by this court, which, at least in their language, are not wholly consistent. We think the rule laid down in Pickett v. State, 43 Texas Crim. Rep. 1, 63 S. W. Rep., 325, is supported by the best considered decisions of this tribunal, and is so intrinsically sound and just as to be a sufficient support for our decisions in this case. The rule, as there stated by Judge Davidson, is Where defendant was acquitted of murder, and convicted of manslaughter, and on appeal the judgment was reversed, he was not entitled in the succeeding trial to an instruction to acquit him of the charge of manslaughter, if the evidence showed him to be guilty/ It appeared in that case as it appears in this, that there was evidence which would have authorized a conviction of either murder or manslaughter, and the appellant requested the court to instruct the jury that if they believed from the evidence that Pickett was guilty of murder in the second degree, they should acquit of manslaughter. The effect, as stated, of that instruction, and the contention there made, was that an acquittal of murder would operate as a bar to the conviction of manslaughter under the same indictment, although there was evidence supporting the latter offense. It is there stated, which is undeniably true, that it has been uniformly held that where a party had been acquitted of a higher degree, or grade, of offense that he can not again be convicted of that grade or degree, but that such acquittal does not operate as a bar in the prosecution of the inferior degree of such offense. On that very issue Judge Davidson says: “'Appellant’s contention is that the jury should offset manslaughter with the acquittal of murder, and therefore acquit if they find from the evidence that defendant is guilty of the higher offense; both of which are but grades of the same offense, and triable under the allegations of -the indictment. We can not assent to this proposition. In Parker’s case, 22 Texas Crim. App., 105, 3 S. W. Rep., 100, the trial court instructed the jury that they could use the testimony showing murder as a predicate for the conviction of manslaughter, although the party had been previously acquitted of murder. That is, appellant could not again be tried for murder when he had been once acquitted of that offense. That case rests upon that proposition. Other cases are numerous to the effect that, where there is evidence of a higher grade of offense, a conviction will not be disturbed for the inferior degree, though there was no testimony showing the inferior degree. These are expressly recognized and sanctioned in Parker’s case. Fuller’s case, 30 Texas Crim. App., 559, 17 S. W. Rep., 1108, is authority for holding that a conviction for murder in the second degree can be had where the evidence shows murder in the first degree. This seems to be predicated upon the idea that malice is a constituent element of both degrees of murder. 'The Fuller case was reaffirmed in Conde’s case, 35 Texas Crim. Rep., 98; 34 S. W. Rep., 286.” Our law makers seem early to have recognized that just such contention as that which confronts us now would often occur. In our Code of Criminal Procedure, paragraph 9, Article 817, we find the following provision: “Where the verdict is contrary to the law and evidence. A verdict is not contrary to the law and evidence within the meaning of this provision, where the defendant is found guilty of an offense of an inferior grade to, but of the same nature as, the offense proved.” In Campbell v. State, 10 Texas Crim. App., 560, Judge Winkler, passing on a similar question, said, “If there is any variance between the proof and the finding of the jury, it will be found on a careful examination that the evidence tends rather to establish a higher grade of offense than manslaughter, rather than a lower grade. If this be true, and if, by the administration of the law, one accused of crime, should be convicted of a lower grade of the crime included within the offense charged in the indictment than the proof warrants, certainly the defendant has no just ground to complain that he has been convicted of a grade of offense lower than the testimony warranted, and one for which a milder punishment is prescribed by law. In this case, however, on account of the fact that on a former trial, the defendant had been virtually acquitted of murder, he could not be put on trial for that grade of offense the second time, but this did not prohibit the State from calling upon him to answer for a lower grade of offense, included within the crime charged in the indictment, and for which he had not been previously tried; and to hold that a conviction for the lower grade of offense- could not be sustained on the ground that the proof did not reduce the offense to the lower grade, would be to say that the State could not inflict any punishment for the offense, whatever, no matter how plain the evidence of his guilt: Such an application of the law would be a monstrous mockery not to be tolerated.” Murder in the first degree, murder in the second degree, and manslaughter, are not, in the strictly legal sense, different offenses, but merely different grades of the same offense. They are all species of unlawful homicide. The provision of our statute, by which in terms, it is said that the mere fact that one is convicted of a lesser grade of offense than that which the evidence shows, should be no ground for a new trial, was but a legislative declaration that because, in any case, the wrongdoer had not received the punishment to which he was entitled, should be no ground or cause why he should go unwhipped of punishment at all. At best the grades and degrees of an unlawful killing are more or less arbitrary, and the line between them sometimes difficult to be drawn. It was intended, as it should have been intended, to punish every man when he had unlawfully and intentionally taken the life of his fellowman, and to hold that because a former jury had acquitted the appellant in this case of murder in the first or murder in the second degree, that he is of right entitled on the second trial to go free, because another jury might conclude under a charge giving these necessarily technical definitions that the offense was murder in the second degree, is to absolutely nullify the substantial provision of our Code of Criminal Procedure, above quoted. In this case, the court defined manslaughter in terms that are substantially beyond criticism, and submitted to the jury the issue, or fact, as to whether, in the light of the evidence, and the instruction so given, the appellant was guilty of this offense. Having been acquitted of murder in the first degree, and murder in the second degree, it was not the right of appellant to have these degrees defined or submitted, or one offset by the other. This we understand to be clearly the rule, and is so in accordance with justice, and so supported by the provisions of our Code above quoted, as to require us to follow it. Tor these reasons we believe the court did not err in refusing to give the special charge above referred to. This, too, is in accordance with the safe and sane rule laid down in Hobbs v. State, 55 Texas Crim. Rep., 299, where we said: “It will thus be seen that under the charge of the court, by necessary implication, appellant was given the full benefit of the fact, reducing the killing to manslaughter, and the jury was charged, as a matter of law, that the adequate cause named in the statute did exist as completely as if the unequivocal admission had been made that his wife did communicate the facts of the insult to him, and that he (appellant) believed her statements to he true, and that they were in fact true.” Again, in the recent case of Anthony v. The State, not yet reported, we held in passing on a charge in respect to manslaughter not entirely or technically accurate, that “since, however, appellant was found guilty of manslaughter, and such finding of necessity was a finding adverse to his plea of self-defense, such error becomes utterly immaterial.” How, then, in this case, when same came on for trial, the matter stood in this wise: The appellant had theretofore been acquitted of murder in both the first and second degrees. He could not, under the provisions of our law, be either tried or convicted of either of these degrees of unlawful homicide. The case, in the absence of any suggestion in the evidence to support any theory of negligent homicide, or any lesser degree of unlawful killing, was, on the part of the State, a case of manslaughter. On the part of appellant, it was contended that the killing, which was admitted, was in self-defense, and therefore under our law justifiable. The issue was therefore narrowed down to this: If the killing was unlawful, the law punished as for manslaughter. If it was in self-defense, the appellant was entitled to go free. The case was not embarrassed with all those niceties of distinction which sometimes vex more than they aid or enlighten. It was just such a contingency as this that our lawmakers, with rare wisdom and prescience, foresaw, and, having this contingency in mind, they made both wise and ample provision for it. They thought out and planned our Penal Code and Code of Criminal Procedure on the basic principle that all offenses for which a free man could be punished, must be defined in clear and intelligible language, and at the same time made the clearest provision, and gave assurance by ample guaranties that his right of self-defense should never be abridged. They knew, however, as we know, that these laws were to be enforced and interpreted by men. They must have known that they would not be enforced with automatic regularity or the shadowy lines of precise degrees always fob lowed with the precision of the map maker. It was to meet the precise condition exhibited in this case, that they enacted the clause of our Code above referred to, “a verdict is not contrary to the law and evidence, within the meaning of this provision, where the defendant is found guilty of an offense of inferior grade to, but of the same nature as the offense proved.” If these views are correct, and the opinions of this court, in Cornelius v. State, and Burnet v. State, and other cases referred to, are to stand, then the case must be affirmed. I am convinced that they are the law, and if they had never been written, I would today, following my judgment, after the most careful examination and patient consideration, so write the law. And to now unsettle these decisions, and to nullify and strike down a statute which was intended to, and does, settle the matter, would be worse than mere child’s play, and from my point of view, would justly subject this court to the charge of trifling with the law, and of engaging in the phantom task of pursuing mere abstractions, while neglecting “the weightier matters of the law.” Besides, it is clear that whether the charge is correct or not, it is favorable to the appellant, and places on the State a heavier burden than the law recognizes. His offense would have been manslaughter if he provoked the difficulty with the intent only to whip or injure deceased. He can not complain if the court, in his charge, required the jury to find that his intent in provoking the difficulty, was to kill Phillips, or do him some serious bodily injury, when the law only required that it should find that his intent was to whip or injure him. Finally, as I have said, if these opinions are to be followed, we think it can not admit of doubt that they are conclusive of appellant’s contention. To my. mind they lay down a correct doctrine. I am authorized, by Judge Love, to say that he is personally inclined to the same view, but in any event, since it is now the settled ruling of the court, that he would not feel authorized to depart from the holding of these cases, unless he thought them wrong practically beyond dispute. There are a number of other questions raised on the appeal, but they are not of sufficient importance in our opinion to require a discussion. After the most careful investigation that we have been able to give to the case, aided as we have been by the fullest and most splendid presentation of the issues by counsel, both for appellant and for the State, we believe that there was no error committed on the trial of the case of which appellant can reasonably complain, and it is therefore ordered that the judgment of conviction be, and the same is, hereby in all things affirmed. Davidson, Presiding Judge, dissents. Affirmed. LOVE, Special Judge. —I fully concur in the foregoing opinion of Judge Bamsey, holding that there is no reversible error in this case, and that it should therefore be affirmed. In view of numerous decisions of this court, I have no doubt that the issue of provoking the difficulty was raised by the evidence, and should have been submitted to the jury, and in view of the decisions in Pickett v. The State, Cornelius v. The State, and Burnet v. The State, all of which I believe to be applicable and controlling, I am clearly of the opinion that there was no reversible error committed by the giving of the 13th paragraph of the court’s charge.
on rehearing. March 29, 1911. PRENDERGAST, Judge. —Because of the importance of the questions, and the great interest taken in this case by both sides, and of the able and earnest contention by the appellant’s attorneys in both oral and written arguments, I have undertaken to thoroughly investigate this case for myself, and have given it an unusual length of time and study. I deem it altogether unnecessary to undertake to discuss in detail the questions raised, and will not do so. However, I will state some of the matters in order to show some of the reasons for my conclusions. All of the questions raised in the presentation of the case originally, are presented again by the motion for rehearing. I have carefully gone over all of these matters, and have reached the conclusion that they neither singly, nor taken together, show any reversible error in this case, which should change the disposition as made by the opinion delivered for the court by Judge Bamsey. However, the two questions which -are most persistently presented and urged, are, that the question of provoking the difficulty by the appellant was not in the case, and the claimed error in paragraph 13, of the charge of the court, on the question of the defendant’s claim of self-defense, which was his main reliance for acquittal on the trial. 1. As to the question of whether or not provoking the difficulty by appellant is in the case: There are several circumstances in the case, unnecessary to detail, which the jury were authorized, and I think it was their duty to consider, in determining this question, and for the court also in determining whether or not he would give a charge on the question. This record unquestionably shows that the appellant had both a pistol and gun at his residence; that he took neither of them with him on this occasion, because he had no ammunition for either. He, however, shows by his own testimony that he expected to meet the deceased at the village where he was killed, and that he was reasonably certain that he would do so. In going there he stopped at his brother’s, and there procured the pistol with which the killing was done. When he first got the pistol it was unloaded, somewhat rusty, and did not work well. He proceeded to oil it and clean it, so that it would work properly and effectively, and then loaded and took it with him. When he first arrived at the village where the killing'took place, and when he was hitching his team, or just after he had hitched it, the deceased came up to the buggy, procured some traps out of it, and a conversation then occurred between appellant and deceased. They then separated, the defendant going some distance to the front of the store, and went into the front at the northeast corner. The deceased, after he procured the traps out of defendant’s buggy, then went into the back end of the store and put them down. Thereupon the defendant approached him and told him he wanted to see him, and asked him out for that purpose. The deceased went out with him, or followed his lead from the rear end of the store to a fencfe at least forty feet back from the store, where both parties stopped and began a conversation, the deceased leaning upon the fence, the appellant either doing so or was right at it. It is clear by the testimony of the defendant himself, as well as others, that the deceased was in his shirt sleeves, had neither coat nor vest on. The defendant says, “I never saw any sign of any pistol at all, and I never saw any pistol on the deceased.” As a matter of fact, it was clearly shown that he had no pistol, and that the only weapon that was ever shown to have been in his hand, or about his person, was a pocketknife. The defendant also shows by his testimony that the only reason or cause that he cleaned, loaded and carried his brother’s pistol with him to the village, was that he believed he would meet the deceased on that occasion. When they got to the fence, by appellant’s own testimony, on direct examination, he said to deceased, “Will, wasn’t you always treated right at my house? and he says, ‘Yes.’ I says, ‘Was you ever mistreated?’ and he says, ‘Ho,’ and then I says, ‘G— d— you, what did you do Hora like you did for?’ He says, ‘Don, I don’t blame you for being mad, but I’m not going to take any abuse off of you.’ I says, ‘You G— d— son-of-a-bitch, I have got it to give, whether you can take it or not.’ He (deceased) just stood there a few seconds and turned around and walked towards the back end of the store.” On cross-examination he testified: “When we got out to the fence, I claim that I asked him-if I hadn’t always treated him right. He said, ‘Yes,’ and I asked him if I had ever mistreated him, and he said, ‘Ho,’ and I cursed him and asked him, ‘What did you do Hora the way you did for?’ He says, ‘I don’t blame you for being mad but I’m not going to take any of your abuse.’ I cursed him and called him a son-of-a-bitch. I said, ‘You G— d— son-of-a-bitch, I have got it to give whether you can take it or not.’ I don’t know what was said then. He had a knife in his hand. There might have been something else said, I don’t remember of anything that was said. . . He started to the house. ... He started first, and I was sorter behind. He was ahead. I followed him talking to him. I suppose I was still abusing him. When he got close to the door he says, ‘How, G— d— you, shut up.’ I says, ‘You G— d— son-of-a-bitch, you will have to make me.’ It is a fact that I said, ‘You G— d— bastardly son-of-a-bitch, you will have to make me,’ that is what I said. I have so testified heretofore in this case. ... I said, ‘You G— d— bastardly son-of-a-bitch,’ that is what I said. Up to that time I had cursed him and called him a son-of-a-bitch and he had made no effort to make an assault on me before that time. He then turned around and said, ‘By G—, I can do it.’” The appellant then shows that the deceased advanced towards him at least one step with the knife drawn as if to assault him, and he then shot him three times in rapid succession; that the deceased was right at the back door of the store, in the act of getting in it or in it when he shot the last of the three shots. It is contended that the evidence in this case shows that the deceased himself provoked the difficulty by, first, his conduct and language to appellant’s wife, and, second, when in effect he admitted it or reiterated it to appellant just before the killing. Conceding that both these things occurred, and that they were sufficient to justify appellant to call upon him armed as he was, neither, nor both, of them would have justified appellant in killing him. They would simply at most have reduced the killing to manslaughter. But appellant did not then kill him. Deceased did not then attack appellant, but walked away from him—tried to get away from appellant and his abuse and cursing, and offensive epithets. The deceased’s bringing on 'the difficulty, if he did, had then spent itself. It was then that the appellant’s acts, words and conduct began and continued which authorized and required the court to submit this question to the jury. It is perfectly evident and clear to my mind that all this evidence showing this following up of the deceased by appellant, and continued following up, and this abuse, and continued abuse, and this cursing him, and repeated cursing him, and this abuse of the most offensive epithets and the repitition of them, and the additional one of “You G—• d— bastardly son-of-a-bitch,” and then when the deceased told the defendant to “shut up,” he replied, “You will have to make me,” was such evidence that the jury could find therefrom a provoking of the difficulty intentionally done by the appellant for the purpose of causing the deceased to attack him so as to give him the opportunity to kill him in claimed self-defense, which, up to that time he had not had. In my opinion it not only called for the submission of this question by the lower court, but it justified, if it did not actually require, the jury to find that the defendant was doing all this and did do and say all this, for the very purpose, and with the intent of provoking the deceased to attack him. so that he would have the opportunity to kill him if he did so. And if the jury believed he said and did all this for that purpose, and with that intent, it unquestionably prevented his being acquitted on the ground of self-defense. So that in my opinion there can be no doubt but that the question of provoking a difficulty was in this case, and that the evidence imperatively required that the matter should be submitted to the jury by the trial court. There is no question but that this court, by at least two—Judges Brooks and Ramsey—if not all the judges, on the previous appeal of the case, held pointedly that provoking the difficulty by the defendant was clearly the cause, and should have been submitted to the jury. And the case was retried by the lower court, by authority of and in conformity with such previous holding. In addition to this, the Court of Civil Appeals, for the Third District, also specifically, in the civil case of Phillips v. Gray, so held. The evidence in the civil case, was substantially, if not precisely, the same on this question as on this trial. The Supreme Court denied a writ of error in said civil case, thereby also holding that that question was in the case. So that this court so held by at least two of the judges on the former appeal, and by two of the judges again in this appeal, the case was retried and the district judge so held, and the said Court of Civil Appeals and Supreme Court so held. 2. Then the next question to be considered is whether or not the court erred in paragraph 13, of this charge. This paragraph 13 (and I might say, too, in connection with it, paragraph 14) is attacked most vigorously and persistently by the appellant on many grounds; among them is, that by paragraph 13 the court submitted the question of malice, of which the defendant claims he had been previously acquitted, and that thereby the jury was caused to fix a higher penalty for manslaughter than it otherwise might or would have done; also that provoking a difficulty necessarily embodies in it the question of malice, and that the court had no right to submit the condition of the defendant’s mind showing murder, which would authorize the jury to convict him of manslaughter when he had already been acquitted of murder, and that the provocation for the difficulty was brought about by Phillips, and not by defendant, in that deceased provoked the difficulty, first, by insulting his wife several days previously, which had unquestionably been communicated to the appellant, and second, when called upon by the appellant on the occasion he, in substance, admitted it or reiterated it, and that the giving of said charge was calculated to arouse the passion of the jury and cause it to affix the highest penalty for manslaughter. The appellant also contends that the use of the word “reduce” in paragraph 4, of the charge wherein the court says this: “In order to reduce a voluntary homicide to the grade of manslaughter,” taken in connection with the words used in paragraph 13, of the charge, clearly defined murder, and in effect submitted the question of murder, and told the jury in effect that if he was guilty of murder, they would find him guilty of manslaughter, and that, this charge taken in connection with various other words and phrases picked out here and there from different paragraphs of the court’s charge/was in direct violation of Article 708, of the Penal Code, which says: “Though the homicide may take place under circumstances showing no deliberation, yet if the person guilty thereof provoked a contest with the apparent intention of killing or doing some serious bodily injury to the deceased, the offense does not come within the définition of manslaughter.” Thus I have given substantially the various objections so persistently and earnestly urged by the appellant and his attorneys to the said paragraph 13 of the court’s charge. I may have omitted to state some of them. If so, I have not omitted the consideration of each and every one of them in arriving at the conclusion I have reached. It is useless to further state anything in connection with the evidence raising the question of whether or not the defendant’s acts, conduct and words at the time called for a charge on the question of provoking a difficulty. There is absolutely no doubt the evidence not only authorized but, in my opinion, required that it should be submitted. This paragraph 13 of the court’s charge is not on the subject of murder in either degree. It does not submit the question of malice directly, nor by implication. It was solely on the subject of the appellant’s claim of self-defense. It would be a strained and improper construction of it to claim that it is on the subject of murder, or that it submits the element of murder either directly or by implication. In my opinion it did not. ¡Neither does this charge in its conclusion or otherwise, authorize or direct the jury to find the defendant guilty of manslaughter, because of any implied malice, nor because of any implication therein calling for a finding by the jury on the subject of murder, nor does it authorize or permit the jury to find him guilty of murder and punish him for manslaughter. I am also clearly of the opinion that said paragraph ought not to have influenced the jury to fix a higher penalty, and did not have that'effect. The concluding part thereof, in these words: “and if you so find from the evidence, beyond a reasonable doubt, the homicide would he manslaughter, under the law herein given you in this charge,” to my mind is a clear statement to the effect that whether or not they would find him guilty of manslaughter, was not to be controlled or influenced by this charge other than it did not permit the defendant to be acquitted because of his claimed self-defense, but that the law of manslaughter was given to the jury in other separate and distinct paragraphs from this in the charge; and to contend and hold that said paragraphs had the effect claimed by defendant, is unreasonable, and is a strained and improper construction and application thereof in this case; and I think that it is also unreasonable to seek to show that this charge is not the law applicable in this case, by "picking out here and there in other distinct portions and paragraphs of the charge of the court, such words as “reduce” in a portion of paragraph 4, of the charge, and other words or paragraphs from other distinct portions of the charge, and attempt to attach them on to this paragraph for the purpose of showing an error therein, The other questions herein have heen fully, ably and correctly discussed and decided by the original opinion herein. So that upon the whole, I am thoroughly convinced and clearly of the opinion that there is no reversible error in this case, and that the motion for rehearing should be overruled, and it is hereby overruled. Overruled. March 29, 1911.
HARPER, Judge, (concurring).—This is a case that has been pending in this court for a great length of time, and has been ably presented by the attorneys for the State and defendant. The first question presented is, that the court erred in submitting the issue of provoking a difficulty, it being claimed, first, that the evidence did not raise the issue; second, that if the evidence did raise the issue, it was improperly presented. After a careful review of the testimony, we have come to the conclusion that the evidence raised the issue, and it was proper for the court to submit it to the jury for their determination. The defendant admits that he had carried some wolf traps to deceased at Valley Springs, on Saturday evening, and that deceased came to the buggy and got the traps, saying to defendant, “Hello Don, what luck?” Deceased went back into a store with his traps when defendant says he followed him into the store, and after he put the traps down, told deceased he wanted to see him, and went on out, about forty feet back of the store. Deceased came out, when defendant accosted him, and asked him why he insulted his wife. Defendant says deceased replied he did not blame him for being angry, but he would take no abuse off of him. Defendant admits he then said, “You God d—n son-of-a-b—h, I have got it to give you whether you take it or not.” That after he had cursed deceased, deceased started back to the store, when he, defendant, followed him, calling him a son-of-a-b—h, and cursing and abusing him. That when deceased got close to the door, he remarked, “How, God d—n you, shut up.” Defendant says he replied, “You G—d d—n bastardly s-n-of-a-b—h, you will have to make me,” when deceased replied, “By G—d I can do it,” and turned and faced defendant, coming towards him a step or two, with a knife in his hand, when he, defendant, shot him. Defendant says he shot three times, deceased being in the door of the store the last shot. This is as defendant presented it. One of the State’s witnesses states that deceased was in the door when the first shot was fired, with his back towards defendant. The State’s theory was that deceased was shot in the back all three times. Defendant’s theory was that deceased was facing him when the first shot was fired, but had turned to go in the door when the last two shots were fired. The body was exhumed, and two shots were in the back, there is no doubt; as to the shot over the ear, it is not clear from which direction it came. Defendant claimed deceased had insulted his wife several days before, and that he carried a pistol with Mm to demand an explanation, and as deceased gave no satisfactory explanation, the killing was manslaughter, hfo matter how much he cursed and abused him, provoking the difficulty could not arise in the case. In this we do not agree with him. The law makes insult to a female relative manslaughter on the ground that one is in such an ungovernable rage he is incapable of contemplating the act. Had defendant killed deceased when he first saw him at the buggy, there would have been some ground for thinking him in an ungovernable rage, but he lets deceased take out his traps and go in the house. He follows Mm, takes him forty feet behind a store, and begins by cursing deceased, and when deceased does not resent it, but starts back in the house, he follows him, cursing and abusing him. If he was in that frame of mind, that the insult to his wife caused that degree of anger, rage, resentment or terror as to render him incapable of cool reflection, why was it he waited so long to fire the fatal shot? Did he follow deceased cursing and abusing him in the hope he would turn and he could claim to have killed him in self-defense? If that be true, he did not kill him because of the insult to Ms wife. These were questions in the case to be presented to the jury, and the court acted properly in submitting them. If the jury believed defendant followed deceased cursing him in the hope deceased would do some act enabling him to claim he did the killing in self-defense, then he would be provoking the difficulty. Defendant further insists that he had been once tried and only found guilty of manslaughter; that the question of provoking the difficulty, for this reason, was eliminated. Defendant was charged with unlawfully killing deceased. This was the offense charged against him, and although the court was correct in only submitting the issue of manslaughter in his charge, the State was authorized to introduce all the evidence at its command to show an unlawful killing. If it had learned of additional testimony since the former trial, it would have been authorized to introduce it, and the court should give a proper charge under all phases of the testimony introduced on that trial of the case. As we view it, the testimony in this trial presented the question, whether defendant killed' deceased in an ungovernable rage on account of the insult, or did he endeavor to so act as to be able to claim self-defense in the killing, seeking to provoke deceased to some hostile act. The court did not err in submitting this issue to the jury, for their determination, hieither do we think the court erred in his charge in this respect. The following is the charge: “9. Every person is permitted by law to defend himself against any unlawful attack, reasonably threatening injury to Ms person, and is justified in using all necessary and reasonable force to defend himself, and homicide is justified by law when committed in defense of one’s person against any unlawful and violent attack made in such manner as to produce a reasonable expectation or fear of death or some serious bodily injury. “10. A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. “11. If, from the evidence, you believe the defendant killed the said Will Phillips, but further believe that at the time of so doing, the deceased had made an attack on him which, from the manner and character of it, and the relative strength of the parties and the defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed, and was making such attack on defendant, and if the weapon used by him, and the manner of its use were such as ' were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant. “12. You are further instructed that where a person is acting in his self-defense, under the law, as explained in this charge, and commences to shoot in his self-defense, the law gives him the right to continue to shoot as long as he believes his life to be in danger, or believes that he is in danger of receiving serious bodily injury at the hands of his assailant, or if viewed from his standpoint, it reasonably appeared to him that he is in such danger. “13. You are instructed that if you find from the evidence in this case beyond a reasonable doubt that the defendant went to where the deceased was killed, and by his own wrongful act (if any there was) brought about the necessity of killing the deceased, Will Phillips, and that defendant provoked a difficulty with said Will Phillips, with the wrongful and wilful intention to take the life of deceased, or inflict upon him serious bodily injury, and you further find that the defendant knowingly and wilfully, and with the specific intention and with a view thereto, used toward deceased language, or did acts, or did both, for the purpose of causing deceased to attack defendant, that he might have a pretext to kill him or inflict upon deceased serious bodily injury, and you find that such language or conduct or acts on the part of the defendant (if any such there was on the part of defendant) was reasonably calculated to bring on the difficulty and cause the deceased to attack the defendant,, and you further find from the evidence, beyond a reasonable doubt, that the defendant, in pursuance of a wrongful, wilful and previously formed design to provoke a difficulty with deceased for the purpose and with the intention of killing him or inflicting upon Mm serious bodily injury, and you further find from the evidence, beyond a reasonable doubt, that intentionally, and with a view thereto, he shot with a pistol and thereby killed deceased, then you are instructed that the defendant’s plea of self-defense will not avail him in this case, and if you so find from the evidence beyond a reasonable doubt, the homicide would be manslaughter under the law herein given in this charge. “14. If on the other hand you find that the defendant called the deceased out to interrogate him concerning language or conduct attributed to deceased concerning defendant’s wife, and with no intention to provoke a difficulty with deceased with the intention to Mil or inflict upon deceased serious bodily injury, then you are instructed that defendant’s right of self-defense would in no way be limited, and if under such circumstances the deceased attacked the defendant with a drawn knife or otherwise, or it reasonably appeared to defendant that such was the intention of the deceased, then the defendant would have the perfect right of self-defense as explained to you in this charge. “15. On the other hand, unless you find from the evidence beyond a reasonable doubt that the defendant provoked a difficulty with the deceased for the purpose and with the specific intentions as above explained to you in this charge, then you are instructed that the defendant’s right of self-defense would in nowise be limited, and if you find that deceased, Will Phillips, was advancing toward defendant with a knife for the purpose of killing or inflicting upon defendant serious bodily injury, or if you believe that it reasonably appeared to the defendant, viewed from his standpoint, that it was the intention of the deceased so to do, and that defendant, to save his own life or to protect himself from receiving serious bodily injury at the hands of the deceased, Will Phillips, or from what reasonably appeared to him to be such view