Jones v. State , 1885 Tex. Crim. App. LEXIS 41 ( 1885 )

Willson, Judge.

In charging the law applicable to manslaughter the learned judge twice instructed the jury, in substance, that if the defendant provoked the conflict with the apparent intention of killing the deceased, or doing him some serious bodily injury, the homicide would be murder and not manslaughter. Again, in charging the law of self-defense, he instructed the jury that if the defendant provoked the conflict with the intention of killing the deceased, or of inflicting upon him serious bodily injury, the homicide could not be justified by self-defense. These instructions are abstractly correct; but it is insisted by counsel for the defendant that they are not warranted by the facts of the case; that there is ño evidence showing, or tending to show, that defendant provoked the contest which resulted in the homicide.

After a careful consideration of the evidence as it is presented to us, we are of the opinion that it does not justify these charges. The quarrel began in the deceased’s house, about a bucket of lard which the defendant had just won of the deceased at a game called “ craps.” Deceased pulled off his coat to fight the defendant, and ordered him to leave the house, and defendant backed out of the house, followed by the deceased, who was armed with an áx, with which he was striking at the defendant. This is the testimony substantially of defendant's0 witnesses, who were present in and near the house and saw what occurred in the house. There is no evidence which contradicts the defendant’s witnesses as to how the conflict originated in the house, and according to these witnesses the deceased was the aggressor from the beginning, and not only provoked the conflict, but forced it upon the defendant by following him with a deadly weapon when he was leaving the house in .obedience to the deceased’s order to leave. These charges were not excepted to at the time of the trial, but were objected to in' a motion for a new trial. In our opinion, the error committed in giving them is a material one, and was well calculated to injure the rights of the defendant, and for such error the conviction must be set aside.

But we might concede that the charges named were justified by the evidence, and still they would be erroneous in so far as they applied to self-defense, in not further instructing the jury that, if the defendant provoked the conflict, but without any felonious intent, such provocation would not have the effect to deprive him entirely of justification or mitigation under his plea of self-defense. If the defendant provoked the conflict, but with no felonious intent, with no intent to kill the deceased or to inflict serious bodily injury upon him, and thereby brought about the necessity of killing the deceased, to save his own life, or to prevent the deceased from inflicting upon him serious bodily injury, while he would not be justified in committing the homicide, still he would not be guilty of murder, but of manslaughter. (Cartwright and Wash v. The State, 14 Texas Ct. App., 486; King v. The State, 13 Texas Ct. App., 277.)

Again, we are of the opinion that the charge of the court upon the law of self-defense is materially defective in other respects. If the jury might believe from the evidence that, at the time the defendant fired the fatal shot, the deceased was making a violent attack upon him under circumstances which reasonably indicated an intention to murder or maim, and the weapon used, and the manner of its use, were such as were calculated to produce either of those results, then the law presumed that the deceased intended to murder or maim the defendant, and the jury should have been so instructed in explicit terms (Penal Code, art. 571; Kendall v. The State, 8 Texas Ct. App., 569), and that in such state of case the homicide would be justifiable. Furthermore, upon this subject the charge should have instructed the jury that if the conduct of the deceased at the time of the homicide was such, under the circumstances, as to reasonably produce upon the mind of the defendant the belief that the deceased was then about to kill or inflict serious bodily injury upon him, the homicide would be justifiable, although in fact the danger was not real but only apparent. The questions in such cases for the jury to determine, and which should be clearly and distinctly submitted to them, are, what was the state of defendant’s mind, and under what influence did he act in committing the homicide? Did it reasonably appear to him that he was then about to be killed or seriously injured by the deceased? In the particulars we have mentioned we think the charge of the court was not as liberal to the defendant as it should have been. (Cartwright v. The State, 16 Texas Ct. App., 473; Smith v. The State, 15 Texas Ct. App., 338; Jordan v. The State, 11 Texas Ct. App., 435.)

We will not consume time in the discussion and determination of other errors insisted upon by defendant’s counsel, because they are not likely to occur in another trial.

Because of the errors in the charge of the court, the judgment is reversed and the cause is remanded.

Reversed and remanded.

[Opinion delivered March 7, 1885.]