Harper v. State

Appellant was convicted of murder and given a penalty of five years in the penitentiary, hence this appeal.

There are no bills of exceptions in the record save those relative to the trial court's refusal to give certain special charges.

The facts show that appellant and the deceased, J. D. Moore, both negroes, were common law husband and wife; that the course of their thus married life had not been running smoothly; that about a week prior to the fatal difficulty appellant had made an assault upon the deceased with a knife, and upon a command by a negro policeman she was disarmed, but at such time threatened to take the life of the deceased. At the time of the killing, about 3 o'clock in the morning, the deceased was at a wash rack near a filling station, and he and appellant were "fussing." According to the State's witness Freeland: "She was fussing with J. D. Moore. She said: 'Are you going to fight?' and he said: 'Go 'way, girl; I don't want no trouble.' She said: 'Yes, you black son-of-a-bitch, you're going to fight.' He said: 'No; I don't want no trouble,' and then she hit him with her purse, hit him in the head. He had not made any move to hit her before that; he was just sitting there at the wash rack. He grabbed a shovel and hit her and she ran." The deceased ran after appellant with the shovel and she called for help; the deceased pursued appellant around the wash rack and finally some one told the deceased to stop, and he did so, and he fell across an oil can and soon died. Appellant during such altercation had a red handled ice pick in her hand, and in her own testimony said that she stabbed deceased therewith. It is shown that there was a small hole just back of the deceased's left clavicle, which penetrated about four inches into the body, and doubtless entered the arch of the aorta and produced his death.

While appellant failed to remember the striking of the deceased with the purse, nevertheless the testimony being presented by the State might have called for the placing of a limitation upon appellant's right of self-defense by a charge on a provocation of the difficulty, or a mutual combat. However, the trial court did not in any manner limit appellant's right of self-defense, but in his charge gave appellant an unrestricted right to an acquittal unless the jury believed beyond a reasonable doubt that she did not thus kill in her own self-defense, as the same reasonably appeared to her at such time.

Appellant's contention as reflected in her requested charge No. 3 was that although she might have provoked such fatal difficulty by her words and acts, or engaged in a mutual combat with deceased, nevertheless if she immediately abandoned the same, she asked the court in such charge to instruct the jury that her right of self-defense would again become available to her unimpaired by her previous acts of provoking the difficulty or engaging in a mutual combat.

In the case of Guerrero v. State, 41 Tex.Crim. R.,53 S.W. 119, it was held that if the charge does not submit the State's theory of mutual combat but ignores that theory altogether, it is not error to fail to charge on defendant's theory of mutual combat and his abandonment thereof where a general charge on self-defense is given.

The office of a charge on an abandonment of the difficulty arises when there has been some limitation placed upon the accused's right of self-defense, and under certain circumstances such as an abandonment of the difficulty by the accused, his perfect right of self-defense again arises. And in this connection we find that evidence of the accused and his antagonist having voluntarily entered into a mutual combat, the right of an imperfect self-defense would also arise, but it is held in the case of Campbell v. State, 84 Tex.Crim. R.,206 S.W. 348:

"If the charge does not submit the State's theory of a mutual combat, but ignores that theory altogether, it is not error to fail to charge on defendant's theory of mutual combat and his abandonment thereof where a general charge on self-defense is given," citing Guerrero v. State, supra.

Under this line of reasoning, we think the trial court's liberality in the charge given on unlimited self-defense eliminated any necessity for a charge relative to an abandonment of the difficulty, no right relative to perfect self-defense having been taken from appellant.

We have examined the other requested charges not given and are of the opinion that they were covered in the main charge given to the jury.

Finding no error in the record the judgment is affirmed.

ON MOTION FOR REHEARING.