Murphy v. State , 149 Tex. Crim. 624 ( 1946 )

We think the question of alleged former jeopardy was properly disposed of in our original opinion. It is not thought necessary to write further thereon.

Appellant urges that we were in error in holding the evidence raised the issue of provoking the difficulty. He cites Crow v. State, 48 Tex.Crim. R., 88 S.W. 814, and other cases which hold that although accused seek a party with whom prior trouble has occurred, that if accused does nothing or says nothing calculated to provoke an attack from said party the issue of provoking a difficulty is not raised. We are in complete accord with such principle. It appears to be without application here. Appellant seems to exclude it by her own testimony. After detailing at length the trouble with deceased she says he ordered her out of his house, and told her if she ever came there again he would kill her. She left, procured a gun, returned to deceased's house, entered with the gun and said, "Well, here I am again." Whereupon, she testified, deceased made a demonstration which caused her to shoot him. We remain of opinion that under the facts here present the issue of provoking the difficulty was raised.

From the motion for rehearing it appears that appellant has construed our original opinion to mean that because it was claimed by appellant that deceased made a threat to kill her at the time she shot him it would warrant the State in proving that deceased's general reputation was that of a peaceable and law-abiding man. It was not intended to so hold. If prior threats are made by deceased directly to accused, or if made to other parties prior to a killing and put in evidence by accused, proof of such prior threats authorizes the State to introduce evidence of the general reputation of deceased as a peaceable person. It was not the threat claimed by accused to have been made at the time she shot deceased which made evidence of his general reputation admissible, but the evidence of a prior threat claimed by appellant to have been made when deceased ordered appellant out of his house and admonished her not to return.

Appellant complains because this court did not discuss his bill of exception number eight which embraces an objection to the trial court's instructions to the jury for not having advised the jury that the State was bound by certain exculpatory statements contained in appellant's confession which had been introduced in evidence by the State. The statements referred to furnished no defense to the killing, but related solely to incidents claimed by accused to have occurred before she and deceased returned to his house.

Bill of exception number twenty, called to our attention in appellant's motion for rehearing, with the statement that same was not discussed in our original opinion, has been again examined, and is deemed without merit and is not thought to call for discussion.

Believing the case to have been properly disposed of in our original opinion, the motion for rehearing is overruled.