Ghent v. State

HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at two years’ confinement in the state penitentiary.

The killing took place in Kaufman county, but the case was tried in Ellis county on a change of venue. The killing took place near what is known as Peele Town, in Kaufman county. W. T. and Jack Nash had owned a farm near this place. During the year 1912 the tenants on this farm received what is called “Whiteeap notices” and left. At the request of the Messrs. Nash the sheriff of the county went down to investigate the matter, and, getting information that led him to believe that a son of B. J. Jernigan (the deceased) was mixed up in the matter, he called to see Mr. Jernigan, and says;

“I went down there to investigate, and I found out to my satisfaction that it was some of the boys there in the neighborhood that had done this; yet I was not in a position to prove it in court. I went into the field to where Mr. Jerni-gan was at work and talked to him about it. I told him that he had property there, and that the interest of the community was his interest, and he should help me eliminate that situation there, and his boys, if they got tangled up in the meshes of the law, it would be hard for them to get out. He asked me who it was, and I told him I did not care to tell him, that I was not in a position to put anybody in court about it, and I told him I just wanted that situation eliminated. He asked me whether his boy had anything to do with it, and I told him that I could not answer his question whether his boy had anything to do with it; that if I began to answer his questions he would finally ask me one that I could not answer; and he talked somewhat irritated because I would not answer his question. He did not seem to be in a very good humor when I left him.”

Later W. T. and Jack Nash sold the laud to some parties in Ellis county, and they placed E. K. Atwood (one of the owners) in charge thereof, and he had charge during the year 1913, and at the time the killing took place in January, 1914. Mr. Atwood testified that in December, 1913, he had some negro tenants on the place, and they were being molested and were being threatened, receiving Whiteeap notices to leave the farm, and some did leave. He (Atwood) applied to W. T. and Jack Nash to aid him in getting a man to go to the farm and look after the matter. They recommended appellant, and he was employed. W. T. Nash testifies in regard to the matter as follows:

“I know tbe defendant, H. 0. Ghent; have known him 15 years — 10 or 15. I remember the circumstances of a report of Whitecapping and' trouble down on the Atwood farm. I had owned that farm previous to that time, me and my family, and had sold it to Mr. Atwood and these other gentlemen. I had a conversation with Mr. Atwood in regard to employing some one to go down there on tbe part of Mr. Atwood and protect the negroes and look after the White-capping. The first conversation we had was with my brother, Jack Nash. My brother and me had a conversation with Mr. Ghent in regard to the matter. He asked him first if he would go, and he said he did not know, and he wanted to know what it would pay him. We told him it would pay him something more than he was getting. He said he was getting, I believe, $40 a month. We told him we thought these people would be willing to pay him possibly $75 a month, and we discussed whether he would go or not. He said if he could agree with them satisfactorily and pleasantly he would go. We told him, of course, that it was a pretty bad thing, that the year before that they had posted some notices on one of the cabins, and that I had to go down there and take the sheriff with me, and the sheriff went around in the community and talked to different people, and I said to some of the people at the store down there in a little crowd that had accumulated that I was running that place, had always run it, and treated them right, and anything I had they could get, and that I wanted to be neighborly, that I paid the big end of the taxes for that school; in fact, mentioned, ‘You have the best country school in the county; this place largely supports it, and X want to get along with you people.’ I told him they had posted these notices the year before, and I told him that I was going to protect the place if I had to go down there and sleep and stay there all the time; that it was a pretty bad community, and there were some bad men down there, and that it was a pretty hard job; that the year before I had taken the sheriff down there. In the conversation I mentioned the fact about going to see Mr. Jernigan. After my brother, Mr. Ghent, and I talked that night Mr. Atwood came to Kaufman, and we had Mr. Ghent in the barn, and I went and got Mr. Grane and brought him down there. Mr. Grane was at that time sheriff of Kaufman county; he had been sheriff for eight or ten years. My brother, Mr. Atwood, Mr. Ghent, Mr. Grane, and myself were all present at the conversation in the barn. We got Mr. Crane for the purpose of advising with Mr. Ghent. We told him that, as sheriff of the county, we wanted to consult with him in connection with employing Mr. Ghent to go down there and protect this property, and mentioned, of course, that he knew about this Whitecapping, and Mr. Crane said, ‘Yes; I haven’t been able to get anybody to handle the situation down there,’ and we asked him what he thought about getting Ghent to go down there, and he said.be thought he was the very man to handle it. He asked Mr. Ghent did he have a gun, and he said he wished he had a saddle gun for him— said, ‘I wish X had my saddle gun to let you have;’ and Ghent said that he had a gun; and we asked Mr. Grane to deputize him, and Mr. Crane said that he could not do that, that he had all of the deputies that the law allowed him, but for him to go ahead and go armed; and he said that a man that would post Whitecap notices and explode dynamite would shoot you in the hack; and he said, ‘Xou watch him now;’ and he.said, ‘There are some bad ones down there;’ and we said, ‘Can’t you give him some authority;’ and he said, ‘Well, now, of course, I cannot deputize him, but I will take care of him about the guns;’ and with that understanding he went down there and accepted this employment, and once or twice during that time while he was employed he came back and consulted Mr. Crane and consulted with us. I don’t remember whether it was in that conversation or the other one we discussed with Mr. Ghent that we had gone down there and talked to Mr. Jernigan. Just before this employment of Mr. Ghent there had been a report to us about the Whitecapping and dynamiting of the place; Mr. Atwood called us up, and then we heard it too. I do not think Mr. Crane went into details about the conversation he had with Jernigan at the time Mr. Crane and me went down to see Jernigan; he just mentioned to Mr. Ghent that he had some trouble there the year before; that he went in the field and talked to Mr. Jernigan, and he became very enraged; he told him that he was sheriff of the county and expected to enforce the law, and that he was down there with Mr. Nash— that is the conversation that he related — that Mr. Nash wanted to be neighborly and get along with those people without any trouble, that he didn’t want any trouble, and that if it was not cut out, if it happened again, he would have to arrest his boy. My recollection is that in that conversation Mr. Crane just said, ‘And he is a bad one’ — used an expression of that kind, ‘He is a had one;’ I think Mr. Crane used that expression.”

[1, 2] Jack Nash, and E. K. Atwood testify, in substance, the same thing. The sheriff denies telling appellant that B. J. Jernigan was a had man, but says he told him only of the conversation he had with Jernigan hereinbefore recited, and denies he agreed “to take care of appellant if he carried a pistol off the premises of Atwood.” After this appellant went to the Atwood farm, and he contends he caused the arrest of some eight or ten men, charging them with the Whitecap-ping. It was shown that when the grand jury investigated the matter only one of the men arrested was indicted; the others being discharged. It was further shown that the man indicted by the grand jury was acquitted. This fact was shown by oral testimony. Appellant objected to it thus being shown, claiming that the record was the best evidence of such fact. In approving the bill the court says that, when the testimony of County Attorney Terry was objected to on this ground, “proof had been made before the witness John Terry was placed on the stand that the Whitecapping cases had been dismissed, all except one, and that case had been tried, and the defendant acquitted, without objection being made thereto.” It is a correct proposition of law that, in so far as the acquittal of one was concerned, the record would have been the best evidence. But, where the grand jury fails and refuses to indict, there is no record made in the minutes of the court of such fact; so that the grand jury had failed and refused to indict could be proven by oral testimony alone. It is a rule of law well recognized that, where objection is made to testimony, a part of which is admissible and a part not, the objection is not good, but the -objection must be directed specifically to that part which is inadmissible. The bill is as follows:

“After the said witness had testified that he was county attorney of Kaufman county, Tex., and that he had charge of the case against the Whitecappers in Kaufman county, Tex., he was asked: ‘Q. What became of the Whitecapping cases?’ To the question the defendant objected, and to the answer sought to be elicited from the said witness the defendant objected, because the testimony was irrelevant and immaterial, and the record of the cases from Kaufman county, Tex., would be the best evidence of what became of the cases. The said objections of the defendant, H. G. Ghent, were by the court overruled, and the witness permitted to state, and he did state, in the presence of the jury: ‘A. Only one bill was returned out of the ten. The grand jury indicted one of them, and failed to return a bill against the other nine, and they were discharged on the failure of the grand jury to indict, and the one was tried and acquitted.’ To which action of the court in permitting this evidence to go to the jury, over the objection of the defendant, the defendant excepted and objected, and he here and now objects and excepts, and tenders this, his bill of exception to said action, and asks that the same be approved as a part of the record in this cause.”

It is thus seen the objection was urged, to all the testimony, and, a portion of it being admissible, the court did not err in overruling the objection. In the case of Ortiz v. State, 151 S. W. 1056, Judge Davidson aptly states the rule:

“Where evidence is introduced over objection, some of which is admissible and some of which is on doubtful grounds, or which might be objectionable, it is the duty of the objector to specify in the bill the particular portion to which objection is urged” — citing Branch’s Crim. Law. § 47; Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615; Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872.

[3] It appears that after Mr. Ghent went to the Atwood farm some unknown parties-visited the Atwood farm dressed in sheets, called Nick Edwards to the door, and handed him the following notice:

“Read and Go.

“Say, negroes, you had better move in the-next three days We have give you all fair warning. We don’t expect a negro to live on the Nash [Atwood] farm at all. We don’t want to hurt you all, but you had damn sure better get off of that farm and stay off. Now, we don’t, want to have to tell you any more to move. This is our last warning.”

Appellant offered this notice in evidence,, and reserved a bill of exception to its exclusion. The court, in approving the bill,, says he excluded the notice because deceased was not connected with it, and refers us to-the statement of facts. The statement of facts shows that appellant was told by the-sheriff that the year before he had reason to-suspect deceased’s son was connected with, the Whitecapping in that community. It further shows that appellant had seen the notice, and that Mr. Atwood told him:

“There was a man by the name of Jernigan, who had made some talk about this negro Nick Edwards, and told him he would give him $50 to stay there, and he bet him $50 more that he did not stay there; that if he went to sleep on that farm he would wake up in hell.”

Appellant says Nick Edwards also told him about the matter, and he went to see Mr. Jernigan, and asked him if he had had that talk with this negro, and he said, “Tes; X had that talk with him,” and deceased said, “God damn him, X am going to kill him for telling yon.” Appellant then recites what occurred, saying he said:

“ ‘No, Mr. Jernigan; there is no use in killing the negro for telling me, because he did not voluntarily tell me, because I went to him and asked him if he had had such a talk with him’— if Mr. Jernigan had had such a talk — and he told me that he had. Nick told me that he had; and I says, ‘Mi-. Jernigan, the negro is not to blame at all, because he would not have told me if I had not asked him the question,’ and he said Edwards had told him, and says, ‘Well, I won’t bother them any more.’ I said, ‘All right, then Mr. Jernigan,’ and I stayed there a few minutes, and he called a couple of negro boys that they had in the field there and asked them if he did not joke them sometimes, and he told these two negro boys what I was up there for, and said to them, T joke the boys a right smart,’ and both of the boys said, ‘Yes,’ and I told Mr. Jer-nigan that I had to go back home, and he went around with me and asked me to go down to dinner with him. I went on back home, and I did not take dinner with him. We were friendly so far as I know.”

This is as near as the record comes to connecting deceased with the delivery of the notice to Nick Edwards, and, as the court permitted Nick Edwards to testify fully in regard to the matter, we do not think he committed error in excluding the contents of the notice. The fact that Nick Edwards received a notice was permitted to be shown, and Nick was permitted to testify:

“I went to Mr. Atwood’s place, in Kaufman county, from Ellis county. I moved from Ellis county to that place to be one of his tenants. I moved over there in October, about the latter part. I lived there during November, December, and January. I knew Mr. Ghent and Mr. Jer-nigan, the man that got killed. Before this killing I was living on the place keeping the house. Pi’ior to this killing I received notices— Whitecap notices; it was at night when I received them. It was Saturday night before Christmas Eve. X had gone up there to a little town by the name of Peele Station to a little store to get me a little stuff, and I came on back home, and was sitting there by the fire between 10 and 11 o’clock, as near as I can remember— I do not know exactly; I did not have any time. A good many of us was sitting around the fire, and somebody walked up and holloaed, ‘Hello!’ and I had my baby in my lap, and I answered, and he says to me — says, ‘Come out here.’ I says, ‘AYhat do you want?’ He says, ‘It don’t matter a damn what I want;’ and I says, ‘Come here,’ when he spoke that way. Of course, I kind of commenced to feel dubious, and I says, T ain’t going nowhere.’ He says, ‘If you don’t come out here I will blow you up, God damn you;’ and I says, ‘Go blow me up, for I ain’t coming.’ At that time some of the boys— It was a dark ball, and he throwed it up against the wall, and it exploded, and he says, ‘If you don’t come we will blow you up.’ One of the boys walked out on the front porch. On Sunday morning I comes to Ennis and goes to Mr. Atwood. I copied from that notice as near as I could, and when I went to Ennis I gave it to Mr. Atwood, and he read it, and asked me if I had an idea who wrote it, or who it was, and I told him that I thought I did. He asked me who, and I gave him the name of the parties I thought it was. He says, ‘Well, you go ahead on up to my house and stay there with son, a colored boy, until after dinner, and I will see about this, and see about maybe.’ That is the words he spoke to me. Previous to this time there was not any houses blowed up, but they set a charge or two close to my house, I suppose. The first two that they put out there there was not any sound; I could hear them. The last two that they put there about 100 yards from .the house in the root of a red oak tree, and put two charges in the same hole, and I was standing on the porch when they went off. The first one that went off I was in the house, and walked out on the porch and seen the last one that went off. At the time I went down and reported this to Mr. Atwood there were some people from Ellis county, from where I was, tenants on the Atwood far-m — Mrs. Dickson and her family. Some of the tenants had gone away at the time they began to blast. There was about two families moved out when they began to dynamiting the place. I went to Ennis and told Mr. Atwood about this after I got the notice, and I then went back to the farm. After that I saw Mr. Jernigan, the man that was killed, and had a conversation with him in reference to dynamiting. He asked me after the people had gone, he asked me — he says, ‘Nick, the rest of the negroes have left out down there,’ and I told him, ‘Yes,’ and he says, ‘Why don’t you leave?’ and I told him I owed Mr. Edwards some,’ and he said he was going to have colored down there, and I thought if he was going to put colored down there I thought I would stay and pay him, and he says to me, ‘It seems to me like that you put yourself up as a target trying to play bully,’ and he says, ‘We don’t allow any bullies down here,’ and he said, ‘If any of the boys say anything to me, you treat them nice and go ahead and not try to play bully,’ and walked on off. He told me in that same conversation he would bet me $50 I would not stay, and would give me $50 if I would stay. He said if I would stay down there that night onte of these mornings I would wake up in hell; that is the way he spoke it. He was in earnest when he was talking then.”

It was thus seen that every circumstance connected with the affair was admitted in evidence, except the contents of the notice, and Nick Edwards testified that:

“He told Mr. Atwood that he thought he knew who wrote the notice; that he told Mr. Atwood the name of the parties connected with the affair.”

If deceased was one of the parties, or Nick Edwards thought he was, it could easily have been proven by him, for he says he told Mr. Atwood who they were, and, if it had been shown that deceased was one of them, then the contents of the notice would have been admissible.

[4] In a number of bills it is shown that R. E. Conner, S. K. Palmer, Lawrence Gillespie, Ed Moore, R. W. Pryor, John Brewer, Ed Martin, Bill Middleton, W. R. Crane, E. W. Henderson, J. S. Terry, Ed Hutcheson, and perhaps others were permitted to testify that they knew deceased, and knew his general reputation as a peaceable and law-abiding citizen, and that such reputation was good. Appellant objected to this testimony, claiming that he had not attacked the reputation of deceased. If he had not, his contention would be correct that such testimony would be inadmissible. However, we are of the opinion that appellant had attacked the reputation of deceased in this respect. Pie himself testified that:

When he was talking with Atwood, Jack Nash, W. T. Nash, and Sheriff Crane, “Mr. Crane told me that it was a rough country in that neck of the woods, something about the words he used, ‘in that neck of the woods,’ and they told me about a fellow by the name of Jer-nigan that lived down there in that country, that the year before that there was some White-capping going on down there, and .that his boy was implicated in the Whitecapping before, and him and Bud Nash went to see Jernigan to talk to him about the boy, and went out in the field where Jernigan was, and Jernigan got pretty raw, something about the words he used, pretty ‘rough,’ and he says, ‘He is a bad man.’ Pie says, T think he is,’ and he says, ‘You will have to watch him.’ In that conversation Mr. Jack Nash told me that if I went down there that I would have to be awful careful; that they were liable to come on to me at any time, and if they did that they would hurt me; that this man Jernigan was one among as bad men as there were in that neck of the woods.”

W. T. Nash testified as hereinbefore stated. Jack Nash testified he told appellant Jernigan, deceased, was a bad man, and that Jernigan was threatening the negroes, and other like statements. The evidence offered in behalf of defendant is replete with testimony that Jernigan was a bad and dangerous man, and the witnesses say they had so told the defendant. In addition to this defendant tried by circumstantial testimony to connect deceased with the Whitecapping that had been going on in that neighborhood. Under such circumstances we think it was permissible for the state, in rebuttal, to show that deceased was not a bad or dangerous man, was not the character of man who would engage in Whitecapping' escapades, but, on the other hand, was a peaceable, law-abiding citizen. Appellant had raised the issue as to the character of deceased, and the state could meet and rebut it. In the case of Berry v. State, 163 S. W. 965, we had this question before us, and we there held:

“Of course, if appellant had not * * * directly nor indirectly attacked the reputation of deceased, it would not have been proper for the state to introduce such evidence. But when the defendant had raised that issue by the evidence adduced by him, * * * under all of our decisions, it was permissible for the state to introduce evidence to meet the proof of defendant, and show, if it could, that deceased was not a violent * * * and dangerous man, but * * * a peaceable, law-abiding citizen.”

This disposes of all the bills of exception in the record, with the exception of the bill relating to the charge of the court. As appellant was found guilty of manslaughter, it is unnecessary to discuss those portions of the exception relating to charge on murder, and the exception to the charge on manslaughter is general in its terms, and without merit. Hendricks v. State, 154 S. W. 1005.

[5] On the issue of self-defense the court charged the jury:

“Upon the law of self-defense you are instructed that, when a person is unlawfully attacked by another, and there is created in the mind of the person so attacked a reasonable expectation or fear of death or serious bodily injury, then the law excuses or justifies such person in resorting- to any means at his command to prevent his assailant from taking his life or from inflicting upon him any serious bodily injury, and it is not necessary that there should be actual danger, as a person has the right to defend his life or person from apparent danger as fully and to the same extent as hé would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him, viewed from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.

“If you believe from the evidence that B. J. Jernigan at the time of the homicide made an unlawful attack upon the defendant with a knife, and that from bis acts, or from his acts coupled with his words, it reasonably appeared to defendant, as viewed from his standpoint, that he was in danger of losing his life or suffering serious bodily injury at the hands of deceased, and that defendant shot and killed the deceased under such reasonable apprehension or fear of death or serious bodily injury, if any such apprehension he had, then you will find the defendant not guilty.

“In connection with the charge on self-defense you are instructed that, if you believe from the evidence that B. J. Jernigan was armed with a knife and had made an unlawful attack with, it upon the defendant in such manner as was reasonably calculated to produce death or serious bodily injury, then the law presumes, and you will presume, that Jernigan intended to kill or seriously injure the defendant.

“You are further instructed that, if you believe from the evidence beyond a reasonable doubt that at the time the controversy arose between Jernigan and defendant, at the time of the homicide, that the defendant was the aggressor and rode his horse at or towards the said B. J. Jernigan, then the law would not require the said B. J. Jernigan to retreat; and, if you further believe from the evidence beyond a reasonable doubt that he took hold of the reins or bits of the horse to push him away from him (Jernigan), or that he made an assault on said defendant with his knife in order to repel the acts, if any, of said defendant, then you are instructed that such act or acts on the part of said Jernigan would not be unlawful, provided he used no more force than was necessary. On the other hand, you are instructed that, if you find from the evidence that said Jernigan was the aggressor, that is, if he threatened to kill the said defendant, or to cut his heart out, and made an attack upon him with a knife, then you are instructed that the acts of the said B. J. Jernigan would be unlawful; and, if you have a reasonable doubt upon this issue, it would be your duty to resolve it in favor of the defendant.”

The latter paragraph of this charge is attacked in several particulars. In the first place it is contended that it impairs appellant’s right of self-defense; does not charge the law of the case; abridges his right to defend his person; has no basis in the testimony; and charges from the standpoint of the dead man, and gives to the jury the dead man’s right of self-defense, etc. If there is error in this paragraph, it may be said it is sufficiently complained of. This makes it necessary to state the facts at the time of the killing. There were hut four eyewitnesses, W. B. Miehaelson, J. D. Warren, Dock Jernigan, and appellant. Miehaelson testified:

That Jernigan was inside of his field, and witness was talking to him, when appellant rode up; that both he and deceased spoke to appellant, and he replied; that Jernigan then said: “ ‘Ghent, you have been rounding- me up to Ed Hutch,’ and he says, T want to round you up.’ Ghent turned with his horse’s head towards the fence and says, ‘What is it?’ He stopped when Jernigan spoke like he did; he was going west towards Red Bank. That was not the road that leads directly to Peele Bake, his ranch. Ghent turned with his horse’s head towards the fence, when he stopped and says, ‘What is it?’ He says, ‘You have been threatening to lock me up to Ed Hutch;’ and Ghent says, ‘God damn you, if you don’t keep your mouth shut I will lock you up.’ Jernigan says, ‘You cannot lock me up;’ and he says, ‘If you will get down I will give you a good whipping.’ Ghent says, ‘I cover the ground I stand on.’ They were cursing and abusing each other. I could not go over all the details. Jernigan says, T understand you have been in the penitentiary.’ He says, T would like to know what you went to the penitentiary for;’ and Mr. Ghent then made a razee at the fence to run through it or jump over it — I could not say which — but he made a razee at the fence. He was on his horse, and when he did that he was up against the wire, and Jernigan caught the horse right by the bits, up close to the mouth. I do not know whether he aimed to keep the horse back outside of the fence or what he did it for; I do not know anything about that; but Mr. Ghent-ran his hand to his pistol, and Jernigan turned the horse loose, and was stepping back when Mr. Ghent shot him; he stepped back, my recollection is, three steps, when Mr. Ghent shot him.”

J. D. Warren testifies, in substance, to the same state of facts-, as does also the deceased’s son, Dock Jernigan. The witnesses for the state say that deceased had a pocketknife in his hand whittling when appellant rode up; that he at no time attempted to use it.

Appellant testified in his own behalf, and said:

“When I rode up there Mr. Jernigan was over in the — he was in the middle of the road, or something near that. I was going very slow, and the words came from him, and I turned around. He was on the inside of the fence, and he says, ‘You jacked me up the other day;’ and he says, ‘Now, I am going to jack you up.’ He says, T want to tell you something right now; there is no God damned ex-convict can do anything with me;’ and when he said that he was right next to the fence, and he caught my horse by the bridle reins and says, ‘God damn you, I am going to cut your heart out,’ and he commenced cutting at me with a knife, and the mare commenced jumping, and in the struggle I was scared and went for my gun— the mare jumping, when I jerked my gun out and shot, and when I shot the mare wheeled around, and the last I seen of Mr. Jernigan as the mare wheeled around he was going’ backwards — stepping backwards. I shot Jernigan because I was scared; I was afraid that they were fixing to mob me; I thought they had a bunch up there to kill me, because I knew that I was in a bad country, and I did not know whether I had any friends in that part of the country or not, and they had told me that he was a bad man. At the time I shot him he was cutting at me with a knife. I shot him to defend myself.”

It is thus seen there is a direct conflict between appellant’s testimony and that of three other eyewitnesses. He admits Jernigan was inside of the field, but says he advanced to the fence, caught his horse by the bridle, and commenced to cut at him, saying, “God damn you, I am going to cut your heart out.” The state’s case is that, when deceased remarked, “I would like to know what you went to the penitentiary for,” appellant made an attempt as if to have his horse jump the fence, when deceased caught the horse by the bridle. Appellant then pulled his gun and shot deceased as he backed off. The court in the paragraph complained of merely presents the two theories of the ease; that is, if appellant advanced on deceased, when he made the remark quoted, and Jernigan acts were done in defending against such an attack by1 appellant, then appellant could not claim to have acted in self-defense. The court puts it in different language, but that is the plain meaning of the words used, and could be understood in no other way by the jury. It is true Jernigan was not on trial, and the question of whether or not he acted in self-defense is not an issue in the case; the issue being whether or not appellant acted in self-defense, or whether he first attacked deceased, and then deceased caught the bridle of the horse and cut at appellant, if he did do so. If appellant made the attack first, the acts of Jernigan, if he did those things, would not justify appellant in slaying the deceased. And, while that paragraph of the charge is inaptly worded, yet the court gives the converse of the proposition, and we do not think it could or was misunderstood by the jury. It would have been better to have used language instructing the jury that, if he committed the first overt act with the intention of bringing on the difficulty, he could not claim to have acted in self-defense, and then the converse of that proposition. However, this, in effect, is what the charge as given, when read with the whole charge on self-defense, does do, and is a direct application of the law to the two theories as presented by the testimony. As before stated, while probably inaptly worded, under the evidence adduced, it presents the issues in a way that the jury would clearly understand what was meant by the language used, and the criticisms of the charge present no error for which the case should be reversed.

The judgment is affirmed.

DAVIDSON, J. I cannot concur.

@=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

<@=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes