Anthony v. State

This case was affirmed in an opinion handed down by Judge Ramsey June 15 of last year. On the motion for rehearing he and Presiding Judge Davidson disagreeing (Judge McCord being disqualified) it had not been decided when the personnel of the court changed the first of this year. On account of this disagreement, we invited and have heard oral argument in this case both for the State and defendant, and have given the record a close scrutiny. The court is still divided, Judge Prendergast having written an opinion overruling the motion, while Judge Davidson has prepared an opinion granting the motion and reversing the case.

It appears that a disposition of the case has finally narrowed down to the issues, did the court err in submitting to the jury the question of mutual combat, and if not, did he err in his charge on this issue. The defendant in this case testified:

"I had known deceased ever since he had been in that section of the country, and lived within a mile of him, or less, for a year. On the morning of the difficulty between deceased and myself I had started to go to D.A. Sanders, another neighbor of mine, for the purpose of going with him to Stephenville, and in doing so went by the home of deceased, on the regular road. I saw some of his calves in my cotton, and came on until I saw Calvin Snider, a son of deceased, standing on the gallery of his father's house. I then stopped and told the boy to tell his father to keep the calves out of my cotton. He replied that his father was in the house and that he would call him out and let me talk to him, and did do so. Deceased then came out and walked out to the gate where I was standing on the outside — in the lane, or by the fence. I had my knife in my hand at the time and was whittling on the top of a post oak bush which I had cut just after leaving my house. It is a habit with me to whittle, and I had no notion of having the knife out for any difficulty with deceased.

"I there told deceased that I wanted him to yoke his calves to keep them out of the field. He said that was all right, and that he would do so. I then said to him to be sure and do it, and don't let them get across in the other field, and then he said he could whip me. His words were: ``Damn you, I can whip you.' I then said to him: ``You are a preacher and you ought not to curse; if you think you can let's go on down the road,' and we went. He walked out and we went down the road together. I expect we went twenty or thirty yards before either of us spoke a word. Deceased then said: ``You and your neighbors have been tormenting me over the phone about my cattle.' I told him that I had not been phoning, but that I had been down there once before about the cattle, but that I had not phoned. I do not recall what reply he made to this, and if there was anything said about McInrow phoning I do not remember it. I told him that it was not I.

"We then walked on and came to where that club was in the side of the road, and he stopped and made a little move as though to pick it up, and I told him not to do that. He then said to me: ``If you will put down that knife I will show you how quick this thing is done.' I told him I would not put the knife down, and about that time Lee Riley drove up, and as he did so he wanted to know what the trouble was. Deceased then said: ``Anthony is just blowing off,' or something to that effect, and then said if I would put up my knife he would show me how quick it was done. I told him I would not do that, and that I did not want to hurt him, if he would behave himself. But I did not want him to hit me with that stick. I was standing at one end of the stick. I do not remember which end, and we were close together. My back was east and we were standing on the south side of the road, he with his back towards the west, and were both standing that way at the time Lee Riley drove by. Riley drove on by, going west, and after he had passed I told deceased that if he wanted to do what was right we would not have any trouble. He then asked me what I wanted him to do, and I told him that I did not want anything except to keep the calves out of the field. He then said he was perfectly willing to do that, and when he told me that I then said to him that I was in a hurry, and turned and shut up my knife, and put it in my pocket and started to walk off. As best I recollect I made a step right to the edge of the road when he struck me with that big stick. He was right up against me at the time. When he struck me this right hand went down on the ground, and the next blow — I don't think I went quite to the ground. I don't know whether I was hit on the back or the breast; I just knew that I was struck again. By the time I got my knife out he was fixing to strike me again, and I dodged down and caught him, and I suppose then is when I stabbed him."

On this theory the court instructed the jury as to the law of murder in the first and second degrees as applicable to this case, but as the jury found the defendant guilty of manslaughter only, it is not necessary to discuss that portion of the charge.

On manslaughter the court instructed the jury: "18. Manslaughter is voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified nor excused by law. 19. By the expression, ``under the immediate influence of sudden passion' is meant: 1. The provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. 2. The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by passion arising from some other provocation. 3. The passion intended is either of the emotions of the mind known as anger, rage, sudden resentment or terror, rendering it incapable of cool reflection. 20. By the expression ``adequate cause' is meant such as would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. The following are deemed adequate causes: 1. An assault and battery by the deceased causing pain and bloodshed. 2. A serious personal conflict in which great injury is inflicted by the person killed, by means of weapons or other instruments of violence, or by means of a great superiority of personal strength. 3. Any condition or circumstance which is capable of creating and does create passion, such as anger, rage, resentment or terror sufficient to render the mind incapable of cool reflection, is adequate cause. 4. And where there are several causes to arouse passion, although no one of them may be sufficient to constitute adequate cause, yet all of the causes combined may be sufficient to do so. 21. In order to reduce a voluntary homicide to the grade of manslaughter it is necessary not only that adequate cause existed to produce the state of mind referred to, that is, of anger, rage, resentment or terror, sufficient to render the mind incapable of cool reflection, but also that such state of mind did actually exist at the time of the commission of the offense.

"22. In this case, gentlemen, it is your duty in determining the adequacy of the provocation, if any, to consider in connection therewith all the facts and circumstances in the case, and if you find by reason thereof the defendant's mind at the time of the killing was incapable of cool reflection, and that such facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, the proof as to the sufficiency of the provocation satisfies the requirements of the law."

In addition thereto the court instructed the jury as follows:

"33. Moreover, gentlemen, if the defendant at the yard gate of the deceased agreed with the deceased to engage in a fight with deceased, and if at the time he intended to have only a fist fight with deceased, and did not intend to fight the deceased with a weapon, and did not intend to use a knife on deceased, and if pursuant to such intention, he went with deceased some distance from the yard gate and house of the deceased, and if at the place they stopped, the deceased struck or attacked the defendant with the large stick exhibited in evidence before you, or with any other stick and produced in his mind such a degree of anger, rage, resentment or terror, as to render it incapable of cool reflection, and that under such circumstances defendant killed the deceased by cutting and stabbing him with a knife, he would not be guilty of a higher grade of offense than manslaughter.

"34. Moreover, gentlemen, if the defendant at the yard gate of the deceased agreed to engage voluntarily in a combat with deceased, either with the knife exhibited in evidence or without it, and with his fists, and if the defendant and the deceased left the yard gate and house of the deceased for the purpose and with the intention of engaging in a combat with each other, but after they had gone some distance from the yard gate and house of the deceased they stopped, and the defendant decided to abandon the combat and the agreement to have a combat, and so stated to the deceased, and started to turn and leave the deceased, and the deceased then struck or attacked the defendant with the stick exhibited in evidence before you or with any other stick, and in defense of himself against such attack by the deceased, the defendant killed the deceased by cutting and stabbing him with the knife exhibited in evidence, or if you have a reasonable doubt as to whether or not the killing occurred under such circumstances, the defendant would be justified in such killing.

"35. Moreover, gentlemen, if the defendant did not agree to fight the deceased unless attacked, and if the deceased attacked the defendant with the club or stick exhibited in evidence before you, or either of them, and the defendant killed the deceased in defense of himself against such attack, or if you have a reasonable doubt as to whether or not the killing took place under these circumstances, you will give the defendant the benefit of such doubt and acquit him."

As will be seen, after defining manslaughter, the court told the jury that if defendant did agree to engage in a fist fight and deceased attacked him with a stick, and defendant killed him under those circumstances he would not be guilty of any higher grade of offense than manslaughter; further instructing them, that if defendant did agree to have a fight with deceased, yet before the fight began, signified his willingness and intention to withdraw from or abandon such agreement, and deceased struck him with a stick he should be acquitted.

In addition thereto the court instructed the jury on the law of self-defense as follows: "25. Upon the law of self-defense you are instructed, gentlemen, that homicide is permitted by law when inflicted for the purpose of preventing the offense of murder, or the infliction of serious bodily injury, when the killing takes place under the following circumstances: 1. It must reasonably appear by the acts or by the words coupled with the acts of the person killed that it was the purpose and intent of such person to commit such murder, or inflict such injury. 2. The killing must take place while the person killed was in the act of committing such murder, or inflicting such injury, or after some act done by him showing evidently an intent to commit such murder or to inflict such injury.

"26. A party who is unlawfully attacked is not bound to retreat in any event to avoid the necessity of killing his assailant.

"27. It is not necessary to the right of self-defense that the danger should in fact exist, if it reasonably appears from the circumstances of the case that danger existed, viewed from the standpoint of the defendant. A person threatened with such apparent danger has the same right to defend himself against it, and to the same extent that he would have were the danger real; and in determining whether there was reason to believe that danger did exist, the appearance must be viewed from the standpoint of the party who acted upon them and from no other standpoint.

"28. In this case, therefore, if the defendant killed R.L. Snider, he was justified in doing so, if he did so to prevent the said R.L. Snider from murdering him or inflicting serious bodily injury upon him, the defendant, provided, it reasonably appeared from the acts or from the words, coupled with the acts of the said R.L. Snider, that it was the purpose and intent of the said R.L. Snider to murder or inflict serious bodily injury upon him, the defendant, and provided, the killing took place while the said R.L. Snider was in the act of murdering or of inflicting serious bodily injury upon the defendant, or after some act done by the said R.L. Snider showing evidently an intent to murder or inflict serious bodily injury upon the defendant. And in passing upon this matter you will view the circumstances from the standpoint of the defendant alone. And if you believe from the evidence in this case that the killing took place under the circumstances indicated in this paragraph of this charge, or if you have a reasonable doubt as to whether it did, you will give the defendant the benefit of such doubt and acquit him."

In the case of Habel v. State, 28 Texas Crim. App., 588, a case less suggestive on the facts of mutual combat than the facts of this case, this court says: "Insofar as murder of the first or the second degree is concerned, all such questions are eliminated by the fact that defendant has been convicted of manslaughter and not murder. As to manslaughter, the charge embraced all the statutory rules with regard to that crime. Had defendant not been found guilty of manslaughter the charge might have been held insufficient as not pertinently applying the law of that grade of crime to the particular facts of the case, and defendant, in a special requested instruction, which was refused, attempted to call the attention of the court to the omission. The instruction was not itself the law, but was sufficient to call the attention of the court to the necessity of an instruction directly applicable to the facts. An instruction was given by the court with regard to mutual combat entered into where death or serious bodily injury likely to result in death might ensue, and properly instructed the jury that in such state of case self-defense would not apply. King v. The State, 4 Texas Ct. App. 54 [4 Tex. Crim. 54] [4 Tex. Crim. 54]; Crist v. The State, 21 Texas Crim. App. 361; Thumm v. The State, 24 Texas Crim. App. 667; Williams v. The State, 25 Texas Crim. App., 216; Willson's Crim. Stats., sec. 982. But the court did not instruct as to what the law would be if defendant went out to engage in a fisticuff with deceased, and with no intention of having a deadly contest or using a deadly weapon, and that his deadly weapon was only used after deceased was apparently about using a deadly weapon upon him. The facts, perhaps, called for some such instruction. But in such case the defendant's right of self-defense would not have been, as is insisted by counsel, a perfect one and entirely justifiable in law, but would have been imperfect to the extent of the gravity of the offense which he intended to commit originally. He went out to engage in an affray, which is a misdemeanor. (Penal Code, art. 313.) ``A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong, if he was himself violating or in the act of violating the law, and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself, which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong.' Reed v. The State, 11 Texas Crim. App., 509; Willson's Crim. Stats., sec. 982. If the original wrong of defendant was or would have been a misdemeanor, then the homicide growing out of or occasioned by it, though in self-defense from an assault made upon him, would be manslaughter, if committed under the immediate influence of sudden passion arising from an adequate cause, such for instance as anger, rage, terror or resentment. Spearman v. The State, 23 Texas Crim. App., 224."

And in Pollock v. State, 32 Tex.Crim. Rep., the court, speaking through Judge Davidson, says: "``Mere words are not a fighting, within the definition of ``affray;' and if one, by insulting language, provokes another to attack him in a public place, but offers no resistance to the attack when made, he does not become guilty of this offense. If he were himself ready to fight, while the other gave the first blow, it would be otherwise.' 2 Bish. Crim. Law, sec. 2, and notes; The State v. Sumner, 5 Strob., 53; The State v. Perry, 5 Jones (N.C.), 9. Looking to the evidence the defendant, though reluctantly, entered the combat with some zeal, was ``rough' in his remarks, and vigorous in his efforts during the fight; and the fighting occurred in a public road. In this attitude of the case it is immaterial who struck the first blow, for both are guilty of the affray. Self-defense was not an issue in the case, and defendant could not justify his action on the ground that he did not strike the first blow."

Other authorities might be cited, but these state the law under the decisions of this court. It appears from defendant's own testimony that there was an agreement to fight. That when deceased said he could whip him, defendant replied, "If you think so come on down the road." He says that they afterwards agreed not to fight and he closed his knife and started off when deceased struck him. In the charge of the court both theories were presented to the jury for their determination. We find nowhere in the record any suggestion of abandonment of the difficulty, other than in the testimony of defendant herein copied, and this, in an appropriate charge, the court tells the jury, if true, defendant should be acquitted. This was as favorable as defendant could expect, for if the rule announced in the Pollock case, supra, that having entered into an agreement to fight, and the fight resulting from this conversation, and he is shown to have entered into the combat with zeal when it started, he could not claim to have acted in self-defense. We do not think the charge of the court is subject to the criticism contained in appellant's brief. It was not for the court to determine these matters of fact, but to give in charge the law, and let the jury determine whether or not in the first instance whether or not there was an agreement to fight, and if there was, then whether or not there was an abandonment of the agreement to fight. The charge having submitted every issue raised by the evidence, and the jury found that defendant was guilty of manslaughter under the evidence, I concur in the judgment overruling the application for a rehearing.