Appellant was convicted of murder and given five years in the penitentiary.
There are no bills of exception in the record except objections to the court's charge. The first exception to the charge is, the court was in error in submitting the issue of murder. We are inclined to believe, under the evidence, the court did not in this matter commit error. A statement, briefly of some of the facts, will show that appellant was a boy seventeen or eighteen years of age, and deceased a man about thirty. The difference in weight was in favor of the deceased by about forty pounds. Deceased and his wife were not living together. The testimony indicates that it is probable that the defendant may have been a contributing cause of their separation. On the night of the trouble Williams and his wife and the wife of deceased were in company on the street walking. Defendant met them, stopped deceased's wife and engaged her in conversation. Just prior to meeting the deceased's wife appellant borrowed a knife from one of the State's witnesses, who testified in this connection: "As we come down the street the defendant asked me to lend him my knife, and I handed it to him right in front of Mr. Pilgreen's house. At that time he and I and Rastus, who was Andrew Gordon, were walking down the street, and after I had let him have the knife, Andrew Gordon and I stopped because I had broken my suspenders and wanted to fix them. When we stopped, defendant, Kid Wilson, walked on, it was after dark, and I could not see him all the way, but we went right behind him. The next time I saw him was when we overtook him; he was standing on the sidewalk talking to Agnes Davis, and I walked by them while they were standing there talking, and right after I passed them I met Henry Davis, and I walked on by a little way, and turned around and watched them, as I expected trouble. I was in sight of them at the time, and Kid Wilson was standing there talking to Henry Davis' wife, and I saw Henry Davis go straight down the sidewalk and go straight towards them, and when he got to where they were they went together and began fighting, and Mrs. Agnes Davis spoke to them, and said, `You all quit,' and repeated it two or three times. While they were fighting Richard Wilson, who was a brother to Kid, came up to them. He was back down the street behind them with Nettie Grant, and he came up there, and when he got there I saw Richard Wilson push them apart, and then they went back together, and at that time Mrs. Davis had hold of Henry, at least it looked that way to me. About the time that Richard Wilson got there Sol Williams came up, and then immediately *Page 624 after that the third fight took place, that is, they went together the third time, and immediately after they had gone together the third time I heard Henry Davis say, `Oh, Lordy! I am cut all to pieces,' and about that time I ran off." The knife is described to be "a large bone-handled knife, with a big blade about three inches long, which length of the blade was admitted to be correct by the attorney representing the defendant, and the attorney representing the State." It is also shown by Williams that when he and his wife and deceased's wife, Agnes Davis, met appellant he asked Agnes Davis to stop and talk to him. While talking deceased came up and a fight ensued. It might be further added that the previous witness testified: "Yes, this is the knife I loaned defendant on the street about one hundred and fifty yards from where the fight took place. It is my knife, and at the time that I loaned it to him he did not say what he wanted with it, and there was nothing said about it; he just said, `Howard, lend me your knife,' and I handed it to him, open. At the time I loaned this knife to Kid Wilson he carried it off in his hand, and it was open at the time I gave it to him, and I never saw him close it up, or put it in his pocket. I never saw any knife or arm at any time on Henry Davis during the fight."
The defendant's theory of the case was that he was talking with the wife of the deceased at the time he came up; that deceased rushed at him, struck him with his fist and broke his glasses, injuring his eye, knocking him down. This was the beginning of the fight. He also testified to some expression of the deceased, who called on his wife for a knife, stating that he expected to "kill the damn black son of a bitch," referring to defendant.
We are of opinion that under this state of facts the court was not in error in submitting the issue of murder to the jury. We think the facts justified the court to so charge.
There is an exception to the charge which should be noticed. It is what is styled in the exception as subdivision or paragraph No. 17 of the court's charge, wherein he applies the law of self-defense to the facts. Numerous cases are cited by appellant to sustain his criticism of the charge. After giving paragraphs Nos. 15 and 16, the usual stereotyped definition of self-defense, the court gave what is styled paragraph No. 17, as follows: "You are further instructed on the law of self-defense as applied to the facts of this case, that if you find from the evidence that the defendant did on or about the time alleged, and with a knife, cut and stab, and thereby kill the said Henry Davis, but you further find that at the time, or just prior to the time that he did so, the said Henry Davis had made an assault upon the defendant and knocked him down, and that thereafterwards in the pursuance of the difficulty between them, if any, the deceased, Henry Davis, called to his wife to give him his knife, and remarked at the same time that `I will kill the black son-of-a-bitch,' or if he made either of said statements, and thereupon approached the defendant, or made an assault *Page 625 upon him in the night-time, and that, as viewed from the standpoint of the defendant at the time, he believed that he was in danger of serious bodily injury or death at the hands of the said Henry Davis, from such attack, or threatened attack, if any, and that while so believing, he pulled his knife and cut and stabbed the said Henry Davis and thereby killed him, then in case you so find the facts to be, or if there is a reasonable doubt in your mind that such were the facts, you will acquit the defendant," etc. Appellant's proposition is that the coupling of conditions and statements as was done in the first portion of this charge was error. Had the charge stopped at that point the case should be reversed, but after stating those he then instructed the jury that if deceased made either of said statements and approached the defendant or made an assault upon him in the night-time, they should give him the benefit of the doubt and acquit him. Several cases are cited by appellant to sustain his criticism of the charge in regard to coupling of conditions upon which the jury should base self-defense. Among those is Lara v. State, 48 Tex.Crim. Rep.. An examination of the Lara case discloses the conditions coupled were not alternative or in the disjunctive of those conditions. In the instant case the court, after joining these together and informing the jury if these matters occurred, defendant would be entitled to an acquittal. Then to guard against any supposed error, and state the law favorable to defendant, he instructed them if they believed either statement or condition, that appellant would be entitled to an acquittal, or if they had a reasonable doubt thereof they should acquit. We are of opinion that this charge, while inartistic, gave the benefit to the defendant of the law of self-defense from the standpoint that if either one of these statements or conditions existed, or there was a reasonable doubt about it, he should be acquitted.
It is also insisted that the evidence is not sufficient to justify the verdict of murder, and that no higher offense than manslaughter is in the case by the testimony. We have stated enough of the testimony we think with reference to the charge submitting the issue of murder to show the jury was justified in finding against appellant's contention on that proposition. We are of opinion there is no such error in the record as would require a reversal of the judgment. It is, therefore, affirmed.
Affirmed.
ON REHEARING. June 23, 1916.