Norwood v. State , 135 Tex. Crim. 406 ( 1938 )

Appellant was convicted of the offense of murder and his punishment was assessed at confinement in the State Penitentiary for a term of twenty-five years.

The record shows that a day or two prior to the date of the homicide, the appellant made a complaint against Calvin Word, Sr., and Cal. Word, Jr., for stealing his goats and swore to an affidavit for a search warrant. On the morning preceding the afternoon of the day of the homicide, the sheriff and his deputy went to the ranch of Cal. Word, Jr., to make a search for the allegedly stolen goats. Soon after the sheriff had arrived at the ranch, appellant and three of his friends appeared, each carrying guns of some kind. At the request of young Word, the sheriff took charge of the guns but when they started to leave, he returned the guns to their respective owners.

During the time that appellant was on the ranch, he remarked to the deceased that he wanted the affair to terminate peaceably. Deceased replied: "It does not look like it, you coming down here with all those guns." Orville Word, an uncle of the deceased, remarked: "A man with the reputation you have — I would carry a gun too. If it was me, I wouldn't let a thieving s__ of a b____ have anything to do with my business." When appellant was leaving the ranch, he inquired of Orville Word if he still meant what he said. Orville replied: "You can take it as you like." Thereupon appellant said: "That is all I want to know," or "I will see you later." The testimony is indefinite as to the exact language appellant used.

It further appears that before appellant and his companions left the ranch, he made an agreement with Andrew and Austin Kinser to meet them at the Jackson Gate at two P. M. to search another pasture of the deceased. Instead of keeping his appointment, he went to the town of Burnet. The deceased and his uncle, Orville Word, had gone to Burnet and parked their car in front of the post office; cars were parked on either side of them. Appellant, who was standing on the sidewalk near the post office, went to his own car, and drove it up behind the deceased's, thus preventing him from backing out. After he had parked his car as stated, appellant got out and called to Orville Word: "Come over here, Mr. Word; I want to see you a minute." At the same time, he reached into his car for a rifle. The deceased spoke to his uncle and warned him not to get out as the appellant had a gun and would kill him. The elder Word got out, however, and started to leave. Some one in the street cautioned him not to run or move, but having sensed the real danger, he hurriedly left. He had gotten only a short distance from the car when he heard a gun fire. He immediately returned to the car, along with others. They found the deceased lying on the left hand side of his car with a Winchester leaning either on the running board or against the left rear fender of his car, the stock resting on the ground and the barrel pointing upward.

Appellant's first contention is that the court erred in admitting the testimony of the sheriff and other witnesses as to what occurred at the ranch a few hours prior to the homicide, on the ground that it showed an extraneous offense. We think this testimony was admissible to show motive, intent and malice. Antecedent quarrels, assaults, and former grudges between the parties are admissible to show the state of mind of the accused and to establish a motive for the homicide. See Guerrero v. State, 171 S.W. 731; Coffman v. State,165 S.W. 939.

Moreover, under Article 1257a, P. C., all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances tending to show the condition of the accused's mind at the time of the homicide, are admissible and may be considered by the jury in determining the punishment to be assessed.

Under the foregoing facts, the court charged the jury on the doctrine of provoking a difficulty. Appellant objected to such charge on the following grounds: (1) The evidence does not raise the issue and therefore does not justify such an instruction; (2) under said instruction, the jury was authorized to convict without a finding that there was a previously formed design on the part of the defendant to kill the deceased; (3) because the converse of the doctrine of provoking a difficulty is not given in plain and intelligent language, and (4) because the charge does not inform the jury that unless they believed, beyond a reasonable doubt, that the defendant deliberately and intentionally did some act, made some demonstration or gesture, used some language, either all or each, with the specific intention of killing or inflicting serious bodily injury upon the deceased, they should find him not guilty, etc.

The charge of the court is, in part, as follows: "You are further instructed as part of the law of this case, and as a qualification of the law of self-defense, that, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, R. B. Norwood, immediately before the difficulty then and there did some act, or used some language, or did both, as the case may be, with the intent on his, the defendant's, part to produce the occasion for killing the deceased, Calvin Word, Jr., and to bring on the difficulty with the said Calvin Word, Jr., and that such conduct on defendant's part, if there was such, was reasonably calculated to, and did, provoke a difficulty, and that on such account the said Calvin Word, Jr., attacked defendant, or reasonably appeared to defendant to attack him, or to be about to attack him, and that the defendant then killed the said Calvin Word, Jr., in pursuance of his original design, if you find there was such, or if the defendant provoked the difficulty that resulted in the death of the deceased, and by his own wrongful act, if any, produced a necessity for taking the life of the deceased, then you will find the defendant guilty of murder and assess his punishment as heretofore stated in this charge. On the other hand, if you find that the acts done, or language used by defendant, if any, was not under the circumstances reasonably calculated or intended to provoke a difficulty, or an attack by deceased upon defendant, or if you have a reasonable doubt thereof, then in such event, defendant's right of self-defense would in no wise be abridged, impaired or lessened, and if you so find, or if you have a reasonable doubt thereof, you will decide the issue of self-defense in accordance with the law on that subject given in other portions of this charge, wholly disregarding and without reference to the law on the subject of provoking the difficulty."

We find ourselves unable to agree with him that the issue of provoking the difficulty was not raised by the testimony. There was an unfriendly state of feeling existing between the parties. This seems to have been intensified by what occurred at the ranch a few hours prior to the commission of the homicide. At the time that deceased and his uncle, Orville Word, parked their car in front of the post office in the town of Burnet, appellant was standing on the sidewalk a short distance to the east of where they were parked. His car, with a rifle therein, was parked still further east and down the street. He immediately went to his car and drove it up behind the car of the deceased so that they could not back out. Appellant then got out of his car on the opposite side, reached for his gun and asked Orville to come to him; that he wanted to see him. Deceased, who saw that his car was blocked and saw appellant's movements, his attitude, and knowing the state of feeling existing, immediately warned his uncle not to comply with appellant's request, because appellant had a gun and would kill him. It seems from the foregoing statement that the deceased had seen appellant with the gun, noticed his movements, and no doubt made an effort to get his gun to protect himself and his uncle from what appeared to be an attack upon them by appellant.

It occurs to us that such is the reasonable and logical conclusion to be drawn from the evidence. Consequently, the issue of provoking a difficulty was raised. If the appellant, by his own act or conduct, did something with the intention of provoking a difficulty and it was reasonably calculated to provoke the deceased to make an attack upon the appellant which he, appellant, might use as a pretext for the killing of the deceased, then he forfeited his right of self-defense. What his intentions were was concealed within his own mind and can only be determined from his words, acts, and conduct. If they were such as would reasonably lead a dispassionate mind to the conclusion that he intended to provoke a difficulty for the purpose of killing the deceased, then the testimony was sufficient to submit the issue to the jury for their determination. In every case where the acts and conduct of the accused were the cause of an attack upon him, the question of whether they were reasonably calculated to provoke the difficulty are questions of fact for the determination of the jury under appropriate instructions from the court. See 22 Tex. Jur., p. 499; Bennett v. State, 252 S.W. 790; Criddington v. State, 78 S.W.2d 185; Hollman v. State, 223 S.W. 206; Keeton v. State, 59 Tex.Crim. Rep..

Ordinarily in determining whether there be evidence calling for a charge on provoking the difficulty, the trial court will not be required to go beyond the State's evidence, though in some cases this might not be true; but if there be such evidence, it would be the duty of the court to submit the law of such issue even though the trial court might believe the evidence on the part of the accused to rebut the theory of provoking the difficulty. The determination of whether the issue be sustained or rebutted would be for the jury. See Crowley v. State, 35 S.W.2d 437; Garner v. State,99 Tex. Crim. 618.

Appellant takes the position that the issue as to who started the controversy was controverted. We find no such evidence in the record. Appellant's own witness, E. D. Anderson, testified as follows: "We [meaning the appellant, the witness, and the son of the witness] were standing with our backs to the wall facing out toward the street when the Word boy and his uncle drove up and parked their car and the boy [meaning the deceased] got out and walked into the post office. The boy did not make any demonstration or say anything calculated to offend anybody. I did not notice him doing anything like that. Mr. Orville Word did not do anything like that. As far as I know he [meaning the deceased] had not done a thing at the time Norwood drove up and stopped his car behind the Word car." (Parentheses ours.)

The second and third objections addressed to said paragraph of the charge, falls far short of complying with Article 658, C. C. P., requiring the defendant or his counsel to specifically and distinctly point out the error complained of.

The fourth objection seems to us to be without merit. The court did charge the jury that if they should believe from the evidence, beyond a reasonable doubt, that the defendant, R. B. Norwood, immediately before the difficulty then and there did some act or used some language, or did both, as the case may be, with the intent on his, the defendant's, part to produce the occasion for killing the deceased, and to bring on the difficulty with said deceased, and that such conduct on defendant's part, if there was such, was reasonably calculated to, and did provoke a difficulty, and that by reason thereof deceased attacked defendant or reasonably appeared to defendant to attack him, or to be about to attack him, and that the defendant then killed the deceased in pursuance of his original design, and by his own wrongful act, if any, produced the necessity for taking the life of the deceased, then you will find the defendant guilty of murder, etc.

It occurs to us that the court required the jury to find beyond a reasonable doubt: (1) That the defendant did some act or used some language with the intent to produce the occasion for killing the deceased, and (2) what he did do was calculated to produce the occasion with the intent of killing the deceased. Hence, the charge is not subject to the criticisms addressed thereto.

By bill of exception number six, appellant complains of the action of the court in permitting the district attorney to prove by Hugh Barnett, the sheriff of Burnet County, on cross-examination that the complaints which had been made by the appellant against the deceased, Cal. Word, Jr., and his father, Cal. Word, Sr., and which had been introduced in evidence by appellant, had been dismissed. Appellant objected on the ground that it was an act of a third party, was done out of the presence and hearing of the defendant, was not binding on him, and was highly prejudicial to his defense.

Appellant offered in evidence the complaints which he had made against the deceased and his father charging them with theft. The purpose for which they were offered is not made to appear, and we fail to see what bearing they could have on his theory of self-defense, unless he sought to impress upon the jury the fact that deceased was a thief and ought to have been killed anyway. It is our opinion that under the holding of this Court in the case of Railey v. State, 58 Tex.Crim. Rep. (16), no reversible error is shown.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.