Carroway v. State

The conviction is assailed upon the ground that the charge of the court offended against the law and precedents in framing the charge on the law of self-defense and provoking the difficulty. The specific criticism is the averment that the charge on self-defense is not in separate and distinct form from that of provoking the difficulty. An examination of the authorities cited fails to convince us of the soundness of the appellant's contention as applied to the particular charge in hand. The court, in paragraph 4, after stating the law of manslaughter and the application of the facts of that offense, instructed the jury upon the law of self-defense in several paragraphs, in the first of which the law of self-defense is stated in the abstract and in the second, application is made of that to the facts. The concluding part of the paragraph we quote:

" * * * and that acting upon such reasonable expectation or fear of death, or serious bodily injury, the defendant fired at the said Will Jackson, and killed the said Marvin Leo Jackson, or if you have a reasonable doubt thereof then you should acquit the defendant and say by your verdict 'not guilty,' and if the said Will Jackson was armed at the time defendant shot at him, if he did shoot at him, and was making such attack upon him with a gun, then the law presumes that the said Will Jackson intended to kill or inflict serious bodily injury on defendant."

The succeeding paragraph begins thus:

"In connection with the foregoing charge on self-defense you are further instructed, etc."

It is not in the terms in which the law of self-defense is put to the jury that is made the subject of complaint, but it is insisted that by the use of the expression last above quoted, namely, "in connection with the foregoing charge on self-defense you are further instructed" that the court blended the charge on self-defense with that of provoking the difficulty and improperly and unduly encumbered a charge on the law of self-defense following the words last mentioned and quoted. It is believed that the precedents cited do not support the appellant's contention. In the cases relied upon the charge on provoking the difficulty and the charge on self-defense were intermingled. For instance, in Castor's case, 40 S.W. 986, the paragraph of the charge upon the law of self-defense concluded thus:

"* * * unless you believe that the defendant, after being struck by Cabazos, retired and armed himself, and then returned and called for Cabazos, for the purpose of killing him."

In Drake's case, 77 S.W. 7, 45 Tex.Crim. Rep., there was a complaint of the paragraph of the charge on self-defense. There was embraced a condition of qualification, of which the court said:

"Charging on self-defense, the court in every instance qualified this issue with a charge on provoking the difficulty."

In the case of Vann v. State, 77 S.W. 813, 45 Tex. Crim. 434, the charge on self-defense had many vital defects. The same is true with reference to the charge on provoking the difficulty. As we understand the record, there was embodied in each charge on self-defense a paragraph to this effect: "If you do not believe that the defendant provoked the difficulty," etc.

In Price's case, 79 S.W. 540, 46 Tex.Crim. Rep., the charge applying the law of self-defense to the facts was interwoven with the qualifying instruction touching the law of provoking the difficulty.

In the other cases to which we are referred, namely, Burnett v. State, 100 S.W. 381; Beard v. State, 81 S.W. 33; McMillan v. State, 126 S.W. 875; Gray v. State, 114 S.W. 635; Sprinkle v. State, 91 S.W. 787, if they relate to the subject at all, the charge on the law of provoking the difficulty was faulty in some of the elements essential to its sufficiency The general principle announced, namely, that when a charge on provoking the difficulty is authorized, there should be given a distinct charge upon that subject and a separate charge upon self-defense, must be construed in the light of the facts before the court at the time of the announcement. It is obvious that it is not possible to instruct the jury on the law of provoking the difficulty without making some reference to the law of self-defense. The two are inseparable, as one is dependent upon the other. What the law requires is that each be distinctly put to the jury without undue emphasis on the law of provoking the difficulty and without intermingling the two so as to bring about a confusion in the minds of the jury.

In using the words "in connection with the foregoing charge on self-defense, you are further instructed," the court followed a practice which has often been found and which, so far as we are aware, has never been condemned. It has been declared that the court should refrain from giving an abstract statement touching the law of provoking the difficulty, and in the present case such statement could, with propriety, have been omitted. Moore v. State, 96 Tex.Crim. Rep.; Carlile v. State, 255 S.W. 990. However, the complaint is not of the abstract statement but of the beginning in the words quoted. Following the abstract statement there is in the charge an unexceptional application of the law to the facts. It embraces the elements of the law of provoking the difficulty and the converse thereof in accord with the rule announced in the Mason case, 88 Tex.Crim. Rep., and procedents theer cited.

The motion is overruled. Overruled.