Carter v. State , 37 Tex. Crim. 403 ( 1896 )

Appellant was convicted of manslaughter, and his punishment assessed at imprisonment in the penitentiary for five years, and prosecutes this appeal. Appellant moved the court that the cause be continued for the want of the testimony of Mat Williams, John Breeland, and Henry Lowe Kelton. The affidavit in support of this motion, viewed in the light of the statement of facts in this record, shows that very important facts could be proved by the absent witnesses. There is no question about the diligence used to secure the attendance of the witnesses. The motion being overruled, the appellant excepted thereto, and reserved a bill of exceptions. Attached to the bill of exceptions is the reason of the court for overruling said motion, to-wit: "The court refused to grant the application on the ground that there were other eyewitnesses to the difficulty in attendance upon the court." This was the first application for a continuance. Appellant was entitled to any number of witnesses within the bounds of reason. This precise question arose in Clark v. State, 33 S.W. Rep, 224, and it was there held that the continuance should have been granted. There are several theories presented by the testimony in this case: First. That the appellant, with a deadly weapon — a knife — in his hand, open, by words and insulting language, provoked the difficulty with the view of slaying his adversary. Upon this theory, the court should have instructed the jury that if they believed from the testimony that the defendant, with a deadly weapon, ready for immediate use, provoked the difficulty, with the purpose of obtaining a pretext for slaying the deceased, he would be guilty of murder, and, we think, of murder in the first degree. That, however, should have been left to the jury. Second theory. That the defendant entered into a mutual combat — a simple assault and battery — and, being assaulted by his adversary and others with chairs, he resorted to a deadly weapon. The court should have instructed the jury upon this theory, to-wit: a mutual combat without intending to do serious bodily injury, and resorting to deadly weapons when more force was used by his adversary than he originally contemplated. The result of such a state of facts would be manslaughter. The theory presented by the testimony for the defense, by quite a number of witnesses, was that the appellant and one Miesch got into a wordy altercation about being treated to beer; that Miesch struck the appellant, who returned the blow, whereupon Miesch and his friends resorted to chairs, and had struck, and were in the act of repeating the blows, when the defendant inflicted the fatal wound with a knife. This being so, it was a clear case of self-defense. The court instructed the jury in regard to provoking the difficulty as follows: "A party may have a perfect right of self-defense, though he may not be entirely free from blame or wrong in the transaction. If the blamable or wrongful act was not intended to produce the occasion, nor art act which was, under the circumstances, reasonably calculated to produce the occasion or provoke the difficulty, then the right of self-defense would be complete, though the act be not blameless. But you are further instructed that a party cannot avail himself of a necessity which he has knowingly and willingly brought upon himself. Whenever a party, by his own wrongful act, produces a condition of things wherein it becomes necessary for his safety that he should take life or do serious bodily harm, then the law imputes to him his own wrong, and its consequences, to the extent that they may and should be considered in determining the grade of his offense, if any, which, but for such acts, would never have been occasioned. How far and to what extent he will be excused or excusable in law depends upon the nature and character of the act he was committing, if any, which produced the necessity that he should defend himself. When his own original act was in violation of law, then the law takes that fact into consideration, in limiting his right of defense and resistance while in the perpetration of such unlawful act." This charge contains nothing but abstract propositions of law. There is no attempt to apply these principles, or any of them, directly to the facts of this case. The wrongful or unlawful act is not named. Let us suppose that the court had in mind the fact that the appellant had his knife drawn, and was using insulting language, and from these facts the jury might infer that he resorted to these means to produce the difficulty. If this was so, the court should have made a direct application of this principle of law to that phase of the case. It is not proper for the charge to leave to the jury to select and pass upon the unlawful or wrongful acts. The court should charge hypothetically upon the assumption that the jury should believe these acts to be true; telling the jury what would be the result in law, or of what offense he would be guilty. The jury might have believed, under this charge, that the appellant provoked the difficulty or produced the occasion by using insulting language to Miesch, a white man, or by persisting to drink beer with a white man, in a white man's saloon, the appellant being a negro. These acts would not compromit the appellant's right to full self-defense, though a difficulty was provoked thereby. Again, a party may be provoked into a difficulty, but the person giving the provocation does not lose his right of self-defense unless he intends to provoke the difficulty with the view of entering into a fight with his adversary. The main question for the decision of the jury is the intention with which the provocation was given, and this should be stated in the charge. In every case involving the question of provoking the difficulty, if the defendant provoked the difficulty or produced the occasion for the purpose of inducing his adversary to make the attack, so that he could kill him, why this is murder. If there is no felonious intent, the party intending an assault and battery, and he is forced to kill to save his life, this is manslaughter. But, unless there is an intention to have a difficulty, his right of self-defense remains complete. Some acts may be committed, of such a character as to carry the intent with them. This, however, is a matter for the jury. The court should, in all cases, submit the intention with which the provocation was given; and the special instructions requested by appellant on this subject should have been given, or something similar. We call attention to the special charges requested by the appellant and refused by the court, as follows: "And in this connection you are charged that if you believe from the evidence that the said M. Miesch had made, or was about to make, such all attack upon the defendant, and that while so engaged one Fritz Newman and one Louis Reineke, the deceased, was present, and, knowing the unlawful intent of the said M. Miesch, either acting together or alone, aided the said M. Miesch in such unlawful attack upon the defendant, then you are instructed that the defendant would have the same right to defend himself from the attack of either the said Newman or the deceased as he would against the said M. Miesch; or if the appearances were such as to cause, and did cause, in the mind of the defendant, a reasonable belief that the deceased was a party to the attack upon him, if any, or which was about to be made upon him by all or either of the aforesaid parties, the defendant's right of self-defense would extend to the acts of each and all of said parties, because in law the act of one would be the act of all; and, if you so believe, you will acquit the defendant, or, if you have a reasonable doubt thereof, you will acquit the defendant. Now, in this connection, you are further instructed that the defendant would have the same right to defend against apparent as well as real danger, and, in passing upon the facts of this case, it is your duty to view the facts from the defendant's standpoint, and judge the same as they appeared to him at the time of the difficulty, as disclosed from the facts in evidence." These instructions should have been given. For the errors indicated, the judgment is reversed, and the cause remanded.

Reversed and Remanded.