Drake v. State

DAVIDSON, Presiding Judge.

This is a conviction for assault with intent to murder, the penalty assessed being two years confinement in the penitentiary.

From the State’s standpoint the facts disclose that Oscar Dennis, the alleged injured party, and appellant were attending a dance; that while the dance was in progress, Dennis testified, that he heard appellant say, “There is the God damn son of a bitch I’ve got it in for,” and looking around he saw appellant pointing his hand at him (witness); that appellant was then talking to Hambrick. As soon as the set was finished witness went to appellant, who was talking with Wheeler Dennis, and touched him on the shoulder and requested an interview. They went off some twenty feet in front of the house in the yard. Upon reaching that point witness turned and asked appellant what he meant by his remark in the house, and he replied that he meant just what he said; that he was going to kill witness, and at once began cutting him with a knife. He then describes the further progress of the difficulty and the cuts inflicted; that they fell to the ground, he on top of- appellant, and “I finally called for some one to part us, when .Hamby and Buchanan came up and parted us.” There had been no previous difficulty between the parties according to this witness. Witness weighed 160 pounds, and was 28 years of age; while appellant was 17 years of age, and weighed about 130 pounds.

Hamby was at the party and was in the yard, some fifteen steps .from the house, talking with Buchanan, when appellant and Dennis came-out of the house, and stopped about ten feet from where witness was standing. Witness heard one of them say something, but did not .understand what it was. He immediately heard a blow and the two men began fighting. They fell to the ground, and witness went up and found Dennis, the injured party, on top of appellant, and he tried to pull him off but could not. Witness stepped back and heard defendant say, “You are too big for me to fight; if you don’t quit choking me I will cut your God-damned guts out.” Defendant’s voice sounded like he was being choked or smothered. “Directly T heard Dennis say, Tull him off, boys; he is cutting me all to pieces/ ” Buchanan and witness then separated them. When Dennis got up he said, “Where is my pistol? I will kill the son of a bitch.” Dennis further remarked, when he got in the house, “I had my thumb in the hollow place in Drake’s throat, and was trying to choke him to death, but could not do it.” Buchanan testified substantially as did the former witness.

Appellant’s theory of the difficulty is directly in conflict with the testimony of Dennis. He says that just before the difficulty he was standing at the door talking to Wheeler Dennis. Oscar Dennis came up and touched him with his hand, and said, “Come out, I want to see you.” That they had gone about twenty feet when Dennis turned, facing defendant, and said, “You damned son of a bitch, I am going to fix you.” He then struck me on the side of my face with his fist, and grabbed me. He.threw me down; he fell on top, and began choking me. I told him if -he did not quit I would cut his God-damhed guts out. Defendant further testified that Dennis continued choking him, and he finally succeeded in getting his knife'out and cut him until Dennis was pulled off. He flatly denied making the statement imputed to him in the house.

Charging on self-defense, the court in every instance qualified this issue with a charge on provoking the difficulty. There were five charges on this issue given by the court in the main charge, and each qualified or limited by a charge on provoking the difficulty. Exception was reserved to these charges, which we think are well taken. Perhaps the court was justified in charging on the issue of provoking the difficulty, but it is unquestionably correct that appellant had a right under the law to a clear and unequivocal charge on self-defense. Appellant and his witnesses make a clear case of self-defense, one that required a charge untrammeled by any limitations or qualifications.

Hpon another trial, if the court should charge upon the issue of provoking the difficulty, it should not be so charged as to limit appellant’s (right of self-defense, because under his view of the case there was absolutely no provocation, but his opponent was in the wrong and was the aggressor from the beginning. The remaining errors will not occur upon another trial.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.