Bradford v. State , 105 Tex. Crim. 179 ( 1925 )

The offense is manslaughter, and the punishment is five years in the penitentiary.

The party killed was Milie Brown. The state's proof shows that deceased and other parties were at her home about 8:30 o'clock and that appellant went there and called for her. The following from the witness, Mark Brown, correctly presents the state's theory as to how the killing happened:

"I was sitting on the porch and the rest of them was sitting on the porch talking. I saw the defendant, Idella Bradford, when she came up there. She came from towards home. * * * The first time I saw her she was up there by the porch where I live. I don't know what she had in her hand at that time. She walked up there and says she wanted to see Milie, speak to Milie a short time. At that time Milie was laying across the bed in the house, and her sister, Melissa Brown, was in the house with her, and Aurila Pate was in there. When Idella Bradford said she wanted to see Milie, wanted to speak to Milie, my sister, Francis Brown, called Milie and Milie came to the door. * * * Milie came out on the porch and Melissa she came out there, too, both Melissa and Milie came out on the porch. After she said she wanted to see Milie she did not say anything to me before Milie came out on the porch. When Milie came out on the porch Idella Bradford commenced to holler 'scatter back' and then she commenced shooting. I didn't see where she got the gun from. The gun was a .45 Army Special. She shot four times."

This statement as to the beginning of the difficulty is corroborated by other witnesses for the state.

It was appellant's theory that her husband had told her before the killing that the deceased had claimed to him that appellant had been intimate with a negro by the name of Boas, whom it seems, was a friend to the deceased. That she had denied such intimacy to her husband and went over to deceased's house on the night in question to ask the deceased why she had told her husband that the appellant had been intimate with the negro Boas. Her theory of what happened at the time of the killing is disclosed in the following statement:

"I went down there and I said, 'Francis, is Milie here,' and she says, 'Yes, ma'am.' I says, 'tell her I wants to speak to her.' At that time I was on the edge of the porch. There is no fence or gate there, and when I asked for Milie, Melissa she comes out, she walks out first. She came out with that iron pipe about so long (indicating), and about that big around. She come out with that pipe and says, 'we are going to kill you, you __________,' and I told her to get back, but she was coming up on me with that iron pipe and I told her four or five times to get back, but she kept coming on up on me and I fired. Milie grabbed the iron pipe and she started up on me with that iron pipe and I told her to get back, get back, get back, and she says, 'you __________, we are going to kill you,' and she drew back and struck me on the shoulder with the iron pipe and I fired, then Milie and I run together after I fired the first shot. She was stronger than I was at the time, because I was sick and weak, and she bent me down and she still had that iron pipe in her hand, and the pistol, I had it wrapped up in my dress."

As the result of this escapade the negro Milie Brown was killed and Melissa Brown was shot.

The only complaint that we deem it necessary to consider is that wherein the appellant criticises the court's action in charging on the question of provoking the difficulty. We think that this question was not in this case. Generally going to a place, though armed, will not of itself deprive a party of the right of self-defense. The mere fact that one with a grievance arms himself and seeks an interview with the man who wronged him is not, of itself, provoking a difficulty. Defendant is not deprived of her right of self-defense because she seeks her adversary for the purpose of having an explanation or peaceful solution of their troubles, though she arm herself so as to protect herself should she be attacked. Branch's P. C., p. 1098. Cartwright v. State, 14 Tex.Crim. App. 499. Ball v. State, 29 Tex.Crim. App. 107; 14 S.W. 1012. Airhart v. State, 40 Tex.Crim. Rep.; 51 S.W. 214. Cook v. State, 43 Tex. Crim. 188; 63 S.W. 872. Hall v. State, 43 Tex. Crim. 487; 66 S.W. 783. Dodd v. State, 68 S.W. 992. Crow v. State,48 Tex. Crim. 421; 88 S.W. 814. Leito v. State, 49 Tex. Crim. 213; 92 S.W. 418.

We have searched this record in vain for any testimony from either the appellant's or the state's standpoint that would raise or tend to raise the issue of provoking the difficulty. If the state's testimony is true the appellant went to the home of the deceased, called her to the porch and shot her; if the appellant's testimony is true, she went to the home of the deceased for a purpose that the law permits. (Shannon v. State, 35 Tex.Crim. Rep., 28 S.W. 687), and upon asking for the deceased, she was attacked by her sister and by deceased, and the killing occurred in perfect self-defense.

We are constrained to hold that the court committed reversible error in charging on the issue of provoking the difficulty, and for this error, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

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.