ON REHEARING. March 29, 1911. Because of the importance of the questions, and the great interest taken in this case by both sides, and of the able and earnest contention by the appellant's attorneys in both oral and written arguments, I have undertaken to thoroughly investigate this case for myself, and have given it an unusual length of time and study.
I deem it altogether unnecessary to undertake to discuss in detail the questions raised, and will not do so. However, I will state some of the matters in order to show some of the reasons for my conclusions.
All of the questions raised in the presentation of the case originally, are presented again by the motion for rehearing. I have carefully gone over all of these matters, and have reached the conclusion that they neither singly, nor taken together, show any reversible error in this case, which should change the disposition as made by the opinion delivered for the court by Judge Ramsey.
However, the two questions which are most persistently presented and urged, are, that the question of provoking the difficulty by the appellant was not in the case, and the claimed error in paragraph 13, of the charge of the court, on the question of the defendant's claim of self-defense, which was his main reliance for acquittal on the trial.
1. As to the question of whether or not provoking the difficulty by appellant is in the case: There are several circumstances in the case, unnecessary to detail, which the jury were authorized, and I think it was their duty to consider, in determining this question, and for the court also in determining whether or not he would give a charge on the question. This record unquestionably shows that the appellant had both a pistol and gun at his residence; that he took neither of them with him on this occasion, because he had no ammunition for either. He, however, shows by his own testimony that he expected to meet the deceased at the village where he was killed, and that he was reasonably certain that he would do so. In going there he stopped at his brother's, and there procured the pistol with which the killing was done. When he first got the pistol it was unloaded, somewhat rusty, and did not work well. He proceeded to oil it and clean it, so that it would work properly and effectively, and then loaded and took it with *Page 468 him. When he first arrived at the village where the killing took place, and when he was hitching his team, or just after he had hitched it, the deceased came up to the buggy, procured some traps out of it, and a conversation then occurred between appellant and deceased. They then separated, the defendant going some distance to the front of the store, and went into the front at the northeast corner. The deceased, after he procured the traps out of defendant's buggy, then went into the back end of the store and put them down. Thereupon the defendant approached him and told him he wanted to see him, and asked him out for that purpose. The deceased went out with him, or followed his lead from the rear end of the store to a fence at least forty feet back from the store, where both parties stopped and began a conversation, the deceased leaning upon the fence, the appellant either doing so or was right at it.
It is clear by the testimony of the defendant himself, as well as others, that the deceased was in his shirt sleeves, had neither coat nor vest on. The defendant says, "I never saw any sign of any pistol at all, and I never saw any pistol on the deceased." As a matter of fact, it was clearly shown that he had no pistol, and that the only weapon that was ever shown to have been in his hand, or about his person, was a pocketknife. The defendant also shows by his testimony that the only reason or cause that he cleaned, loaded and carried his brother's pistol with him to the village, was that he believed he would meet the deceased on that occasion.
When they got to the fence, by appellant's own testimony, on direct examination, he said to deceased, "Will, wasn't you always treated right at my house? and he says, `Yes.' I says, `Was you ever mistreated?' and he says, `No,' and then I says, `G__ d___ you, what did you do Nora like you did for?' He says, `Don, I don't blame you for being mad, but I'm not going to take any abuse off of you.' I says, `You G__ d___ son-of-a-bitch, I have got it to give, whether you can take it or not.' He (deceased) just stood there a few seconds and turned around and walked towards the back end of the store."
On cross-examination he testified: "When we got out to the fence, I claim that I asked him if I hadn't always treated him right. He said, `Yes,' and I asked him if I had ever mistreated him, and he said, `No,' and I cursed him and asked him, `What did you do Nora the way you did for?' He says, `I don't blame you for being mad but I'm not going to take any of your abuse.' I cursed him and called him a son-of-a-bitch. I said, `You G__ d___ son-of-a-bitch, I have got it to give whether you can take it or not.' I don't know what was said then. He had a knife in his hand. There might have been something else said, I don't remember of anything that was said . . . He started to the house. . . . He started first, and I was sorter behind. He was ahead. I followed him talking to him. I suppose I was still abusing him. When he got close to the door he says, `Now, G__ d___ you, shut up.' I says, `You G__ d___ son-of-a-bitch, *Page 469 you will have to make me.' It is a fact that I said, `You G__ d___ bastardly son-of-a-bitch, you will have to make me,' that is what I said. I have so testified heretofore in this case. . . . I said, `You G__ d___ bastardly son-of-a-bitch,' that is what I said. Up to that time I had cursed him and called him a son-of-a-bitch and he had made no effort to make an assault on me before that time. He then turned around and said, `By G__, I can do it.'" The appellant then shows that the deceased advanced towards him at least one step with the knife drawn as if to assault him, and he then shot him three times in rapid succession; that the deceased was right at the back door of the store, in the act of getting in it or in it when he shot the last of the three shots.
It is contended that the evidence in this case shows that the deceased himself provoked the difficulty by, first, his conduct and language to appellant's wife, and, second, when in effect he admitted it or reiterated it to appellant just before the killing. Conceding that both these things occurred, and that they were sufficient to justify appellant to call upon him armed as he was, neither, nor both, of them would have justified appellant in killing him. They would simply at most have reduced the killing to manslaughter. But appellant did not then kill him. Deceased did not then attack appellant, but walked away from him — tried to get away from appellant and his abuse and cursing, and offensive epithets. The deceased's bringing on the difficulty, if he did, had then spent itself. It was then that the appellant's acts, words and conduct began and continued which authorized and required the court to submit this question to the jury.
It is perfectly evident and clear to my mind that all this evidence showing this following up of the deceased by appellant, and continued following up, and this abuse, and continued abuse, and this cursing him, and repeated cursing him, and this abuse of the most offensive epithets and the repetition of them, and the additional one of "You G__ d___ bastardly son-of-a-bitch," and then when the deceased told the defendant to "shut up," he replied, "You will have to make me," was such evidence that the jury could find therefrom a provoking of the difficulty intentionally done by the appellant for the purpose of causing the deceased to attack him so as to give him the opportunity to kill him in claimed self-defense, which, up to that time he had not had. In my opinion it not only called for the submission of this question by the lower court, but it justified, if it did not actually require, the jury to find that the defendant was doing all this and did do and say all this, for the very purpose, and with the intent of provoking the deceased to attack him so that he would have the opportunity to kill him if he did so. And if the jury believed he said and did all this for that purpose, and with that intent, it unquestionably prevented his being acquitted on the ground of self-defense. So that in my opinion there can be no doubt but that the question of provoking a difficulty was in this case, and that the evidence imperatively required *Page 470 that the matter should be submitted to the jury by the trial court.
There is no question but that this court, by at least two — Judges Brooks and Ramsey — if not all the judges, on the previous appeal of the case, held pointedly that provoking the difficulty by the defendant was clearly the cause, and should have been submitted to the jury. And the case was retried by the lower court, by authority of and in conformity with such previous holding. In addition to this, the Court of Civil Appeals, for the Third District, also specifically, in the civil case of Phillips v. Gray, so held. The evidence in the civil case, was substantially, if not precisely, the same on this question as on this trial. The Supreme Court denied a writ of error in said civil case, thereby also holding that that question was in the case. So that this court so held by at least two of the judges on the former appeal, and by two of the judges again in this appeal, the case was retried and the district judge so held, and the said Court of Civil Appeals and Supreme Court so held.
2. Then the next question to be considered is whether or not the court erred in paragraph 13, of this charge. This paragraph 13 (and I might say, too, in connection with it, paragraph 14) is attacked most vigorously and persistently by the appellant on many grounds; among them is, that by paragraph 13 the court submitted the question of malice, of which the defendant claims he had been previously acquitted, and that thereby the jury was caused to fix a higher penalty for manslaughter than it otherwise might or would have done; also that provoking a difficulty necessarily embodies in it the question of malice, and that the court had no right to submit the condition of the defendant's mind showing murder, which would authorize the jury to convict him of manslaughter when he had already been acquitted of murder, and that the provocation for the difficulty was brought about by Phillips, and not by defendant, in that deceased provoked the difficulty, first, by insulting his wife several days previously, which had unquestionably been communicated to the appellant, and second, when called upon by the appellant on the occasion he, in substance, admitted it or reiterated it, and that the giving of said charge was calculated to arouse the passion of the jury and cause it to affix the highest penalty for manslaughter. The appellant also contends that the use of the word "reduce" in paragraph 4, of the charge wherein the court says this: "In order to reduce a voluntary homicide to the grade of manslaughter," taken in connection with the words used in paragraph 13, of the charge, clearly defined murder, and in effect submitted the question of murder, and told the jury in effect that if he was guilty of murder, they would find him guilty of manslaughter, and that this charge taken in connection with various other words and phrases picked out here and there from different paragraphs of the court's charge, was in direct violation of Article 708, of the Penal Code, which says: "Though the homicide may take place under circumstances *Page 471 showing no deliberation, yet if the person guilty thereof provoked a contest with the apparent intention of killing or doing some serious bodily injury to the deceased, the offense does not come within the definition of manslaughter."
Thus I have given substantially the various objections so persistently and earnestly urged by the appellant and his attorneys to the said paragraph 13 of the court's charge. I may have omitted to state some of them. If so, I have not omitted the consideration of each and every one of them in arriving at the conclusion I have reached.
It is useless to further state anything in connection with the evidence raising the question of whether or not the defendant's acts, conduct and words at the time called for a charge on the question of provoking a difficulty. There is absolutely no doubt the evidence not only authorized but, in my opinion, required that it should be submitted.
This paragraph 13 of the court's charge is not on the subject of murder in either degree. It does not submit the question of malice directly, nor by implication. It was solely on the subject of the appellant's claim of self-defense. It would be a strained and improper construction of it to claim that it is on the subject of murder, or that it submits the element of murder either directly or by implication. In my opinion it did not. Neither does this charge in its conclusion or otherwise, authorize or direct the jury to find the defendant guilty of manslaughter, because of any implied malice, nor because of any implication therein calling for a finding by the jury on the subject of murder, nor does it authorize or permit the jury to find him guilty of murder and punish him for manslaughter. I am also clearly of the opinion that said paragraph ought not to have influenced the jury to fix a higher penalty, and did not have that effect. The concluding part thereof, in these words: "and if you so find from the evidence, beyond a reasonable doubt, the homicide would be manslaughter, under the law herein given you in this charge," to my mind is a clear statement to the effect that whether or not they would find him guilty of manslaughter, was not to be controlled or influenced by this charge other than it did not permit the defendant to be acquitted because of his claimed self-defense, but that the law of manslaughter was given to the jury in other separate and distinct paragraphs from this in the charge; and to contend and hold that said paragraphs had the effect claimed by defendant, is unreasonable, and is a strained and improper construction and application thereof in this case; and I think that it is also unreasonable to seek to show that this charge is not the law applicable in this case, by picking out here and there in other distinct portions and paragraphs of the charge of the court, such words as "reduce" in a portion of paragraph 4, of the charge, and other words or paragraphs from other distinct portions of the charge, and attempt to attach them on to this paragraph for the purpose of showing an error therein. *Page 472
The other questions herein have been fully, ably and correctly discussed and decided by the original opinion herein. So that upon the whole, I am thoroughly convinced and clearly of the opinion that there is no reversible error in this case, and that the motion for rehearing should be overruled, and it is hereby overruled.
Overruled.
March 29, 1911. March 29, 1911.