Hammonds v. State , 82 Tex. Crim. 387 ( 1917 )

The former appeal is reported in 177 S.W. Rep., 493. It is deemed unnecessary to make a statement of the facts in the disposition of this appeal. While the evidence is not altogether as shown by the previous appeal, yet such evidence may be treated as being substantially the same.

The court charged the jury that, if they should find from the evidence that defendant and Joe Hokes armed themselves and pursued deceased with the intention of taking his life, or inflicting upon him serious bodily injury, he could not justify on the ground of self-defense. Exceptions were reserved to this charge; they are correct. It takes more than is stated by the court in the charge to forfeit the right of self-defense. Appellant and Hokes may have done as stated in the charge, and had the intent and purpose to kill, or inflict serious bodily injury, yet without some act done by them, or words spoken, or both by such words and acts, they provoked deceased into a difficulty, or give evidence by word or act of carrying out their purpose, self-defense would still remain. An accused party does not forfeit his right of self-defense by simply having an intent to kill, or to do serious bodily injury. There must be some act done or word spoken indicating his purpose, and in addition he must execute that purpose, or provoke the other party to do something that he may execute it. It is not every act done by an accused which forfeits his right of self-defense. If the act done, or word spoken, is to provoke the difficulty with the ulterior view of killing, or inflicting serious bodily injury, and he does the act, or utters the provoking words, the killing might be murder. If for a less purpose than to kill or inflict serious bodily injury, the law of imperfect self-defense would arise, and the culpability under such circumtsances would be of less magnitude than murder. It is, therefore, necessary, as a prerequisite to forfeiting the right of self-defense, that the accused must do or say something as to his purpose which would and does bring on the difficulty. The charge is erroneous from any viewpoint.

The court also charged the jury that, if they should believe that defendant sought the meeting with deceased for the purpose of slaying him, or inflicting upon him serious bodily injury, and, having found him, did some act or used some language, or did both, with intent to produce the occasion to bring on the difficulty, and that the same, under the circumstances, was or were reasonably calculated to provoke a difficulty, and on such account deceased attacked the defendant, or Joe Hokes, or both of them, and the defendant, or Joe Hokes, while acting together at that time as principals, as heretofore defined in the charge, shot and killed deceased in pursuance of their original design, then defendant can not justify on the ground of self-defense, for such killing would be murder. Various exceptions were urged, and special charges requested and refused. These were timely presented. This charge falls short of the law, and did not submit the converse of the proposition announced by the court, towit: If appellant and Hokes followed deceased, not for the purpose of killing him but inflicting upon him injury less than such as would cause murder, then the question of imperfect self-defense arose, and the killing might be less than murder. It would present the question of manslaughter. Having charged on the doctrine of provoking a difficulty, with the ulterior purpose of killing, or inflicting serious bodily injury, the converse of the proposition, that if the purpose was less than to kill or inflict serious bodily injury, then imperfect self-defense would be in the case, and an appropriate charge should have been given presenting that theory. The question is suggested by the testimony, and should have been covered by the charge. The theory of appellant and Hokes was, they followed deceased for a peaceable settlement, and they tried to prevent a difficulty by calling to him not to do anything wrong or rash, that they wanted a peaceable settlement. If the jury believed that, and the deceased then fired, and appellant returned the fire, the question of self-defense would be raised from that standpoint, that is, the question of perfect self-defense. These propositions were in the case, and should have been given in the charge.

There is another question suggested for decision, that is, the alleged error admitting statements of deceased on the theory they were res gestae. We deem it unnecessary to set out the statement; it is lengthy. After reviewing it, we are of opinion that the matter was sufficiently connected with the tragedy, and so close in time to the transaction as to bring it within the rule of res gestae. It was but a few moments after the shooting, and the witness testifying to the statement of deceased said when he heard the shooting he started in that direction. The shooting occurred about 300 yards from where he was located. He met the deceased running toward him from the scene of the shooting with a pistol in his hand. He took him to his house nearby, laid him on the bed, and took his pistol. Deceased was badly shot. Under these circumstances he made this statement. We are of opinion that the testimony is within the rules of res gestae and admissible.

For the reasons set out with reference to the errors in the charge of the court, the judgment will be reversed and the cause remanded.

Reversed and remanded.