Melton v. State , 24 Tex. Ct. App. 47 ( 1887 )

White, Presiding Judge.

All the evidence adduced in this case goes to show that the homicide was occasioned by and was the result of insulting and defamatory statements made by the deceased about the daughters of defendant. Defendant himself claimed that this was the sole cause and occasion of the killing, and, if any fact in the transaction is clearly established, it is that aftér being informed of the defamatory language appellant declared his intention to kill deceased, and having made his preparations to do so, started from home for the purpose of putting them into execution. On the first day when he was seeking deceased for that purpose, it is reasonably made to appear that he saw him, and under circumstances in which he might easily have made the effort, and perhaps have accomplished his vengeance; but he did not do so. On the following day he again went to the place of the homicide, for the avowed purpose of finding and killing the deceased, and there can be no question but that he provoked the altercation, if there was one, which immediately led to the killing.

Opinion delivered October 22, 1887.

Under these facts the homicide could not have been manslaughter, because he did, not kill him when he first met him, or had an opportunity to kill after having been informed of the insult. (Penal Code, sub div. 4, arts. 597, 598; Howard v. The State, 23 Texas Ct. App., 265.) And again, not having killed on the first meeting and opportunity, the crime was not manslaughter, because the second meeting and contest was sought, brought about and provoked by defendant, with apparent intention and for the purpose of killing deceased. (Penal Code, art. 603; Greene v. The State, 12 Texas Ct. App., 445.)

With greater reason it may be asserted that there is not- the slightest pretense of self defense legitimately raised by the facts; on the. contrary, they clearly, if not absolutely, negative such defense. Such being the case, even if we concede proper diligence to obtain the absent testimony for which the continuance was sought to prove self defense, still we would be forced to hold, in the light of the indubitable facts established, that said testimony would not be, probably true. We see no error in the ruling of the court upon the application, and the refusal of the new trial in so far as it was based upon it.

Serious complaint is made of the charge of the court. In our opinion it is a most able and lucid exposition of the law upon all the legitimate phases of the facts.' Ho material reversible error has been presented on this appeal, wherefore the judgment is affirmed. Affirmed.