This is a case that has been pending in this court for a great length of time, and has been ably presented by the attorneys for the State and defendant.
The first question presented is, that the court erred in submitting the issue of provoking a difficulty, it being claimed, first, that the evidence did not raise the issue; second, that if the evidence did raise the issue, it was improperly presented. After a careful review of the testimony, we have come to the conclusion that the evidence raised the issue, and it was proper for the court to submit it to the jury for their determination. The defendant admits that he had carried some wolf traps to deceased at Valley Springs, on Saturday evening, and that deceased came to the buggy and got the traps, saying to defendant, "Hello Don, what luck?" Deceased went back into a store with his traps when defendant says he followed him into the store, and after he put the traps down, told deceased he wanted to see him, and went on out, about forty feet back of the store. Deceased came out, when defendant accosted him, and asked him why he insulted his wife. Defendant says deceased replied he did not blame him for being angry, but he would take no abuse off of him. Defendant admits he then said, "You God d__n son-of-a-b___h, I have got it to give you whether you take it or not." That after he had cursed deceased, deceased started back to the store, when he, defendant, followed him, calling him a son-of-a-b___h, and cursing and abusing him. That when deceased got close to the door, he remarked, "Now, God d__n you, shut up." Defendant says he replied, "You G__d d__n bastardly s-n-of-a-b___h, you will have to make me," when deceased replied, "By G__d I can do it," and turned and faced defendant, coming towards him a step or two, with a knife in his hand, when he, defendant, shot him. Defendant says he shot three times, deceased being in the door of the store the last shot. This is as defendant presented it.
One of the State's witnesses states that deceased was in the door when the first shot was fired, with his back towards defendant. The State's theory was that deceased was shot in the back all three times. Defendant's theory was that deceased was facing him when the first shot was fired, but had turned to go in the door when the last two shots were fired. The body was exhumed, and two shots were in the back, there is no doubt; as to the shot over the ear, it is not clear from which direction it came. Defendant claimed deceased had insulted his wife several days before, and that he carried a pistol with *Page 473 him to demand an explanation, and as deceased gave no satisfactory explanation, the killing was manslaughter. No matter how much he cursed and abused him, provoking the difficulty could not arise in the case. In this we do not agree with him. The law makes insult to a female relative manslaughter on the ground that one is in such an ungovernable rage he is incapable of contemplating the act. Had defendant killed deceased when he first saw him at the buggy, there would have been some ground for thinking him in an ungovernable rage, but he lets deceased take out his traps and go in the house. He follows him, takes him forty feet behind a store, and begins by cursing deceased, and when deceased does not resent it, but starts back in the house, he follows him, cursing and abusing him. If he was in that frame of mind, that the insult to his wife caused that degree of anger, rage, resentment or terror as to render him incapable of cool reflection, why was it he waited so long to fire the fatal shot? Did he follow deceased cursing and abusing him in the hope he would turn and he could claim to have killed him in self-defense? If that be true, he did not kill him because of the insult to his wife. These were questions in the case to be presented to the jury, and the court acted properly in submitting them. If the jury believed defendant followed deceased cursing him in the hope deceased would do some act enabling him to claim he did the killing in self-defense, then he would be provoking the difficulty.
Defendant further insists that he had been once tried and only found guilty of manslaughter; that the question of provoking the difficulty, for this reason, was eliminated. Defendant was charged with unlawfully killing deceased. This was the offense charged against him, and although the court was correct in only submitting the issue of manslaughter in his charge, the State was authorized to introduce all the evidence at its command to show an unlawful killing. If it had learned of additional testimony since the former trial, it would have been authorized to introduce it, and the court should give a proper charge under all phases of the testimony introduced on that trial of the case. As we view it, the testimony in this trial presented the question, whether defendant killed deceased in an ungovernable rage on account of the insult, or did he endeavor to so act as to be able to claim self-defense in the killing, seeking to provoke deceased to some hostile act. The court did not err in submitting this issue to the jury, for their determination. Neither do we think the court erred in his charge in this respect. The following is the charge:
"9. Every person is permitted by law to defend himself against any unlawful attack, reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to defend himself, and homicide is justified by law when committed in defense of one's person against any unlawful and violent attack made in such manner as to produce a reasonable expectation or fear of death or some serious bodily injury. *Page 474
"10. A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger, as it appeared to him 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.
"11. If, from the evidence, you believe the defendant killed the said Will Phillips, but further believe that at the time of so doing, the deceased had made an attack on him which, from the manner and character of it, and the relative strength of the parties and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed, and was making such attack on defendant, and if the weapon used by him, and the manner of its use were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant.
"12. You are further instructed that where a person is acting in his self-defense, under the law, as explained in this charge, and commences to shoot in his self-defense, the law gives him the right to continue to shoot as long as he believes his life to be in danger, or believes that he is in danger of receiving serious bodily injury at the hands of his assailant, or if viewed from his standpoint, it reasonably appeared to him that he is in such danger.
"13. You are instructed that if you find from the evidence in this case beyond a reasonable doubt that the defendant went to where the deceased was killed, and by his own wrongful act (if any there was) brought about the necessity of killing the deceased, Will Phillips, and that defendant provoked a difficulty with said Will Phillips, with the wrongful and wilful intention to take the life of deceased, or inflict upon him serious bodily injury, and you further find that the defendant knowingly and wilfully, and with the specific intention and with a view thereto, used toward deceased language, or did acts, or did both, for the purpose of causing deceased to attack defendant, that he might have a pretext to kill him or inflict upon deceased serious bodily injury, and you find that such language or conduct or acts on the part of the defendant (if any such there was on the part of defendant) was reasonably calculated to bring on the difficulty and cause the deceased to attack the defendant, and you further find from the evidence, beyond a reasonable doubt, that the defendant, in pursuance of a wrongful, wilful and previously formed design to provoke a difficulty with deceased for the purpose and with the *Page 475 intention of killing him or inflicting upon him serious bodily injury, and you further find from the evidence, beyond a reasonable doubt, that intentionally, and with a view thereto, he shot with a pistol and thereby killed deceased, then you are instructed that the defendant's plea of self-defense will not avail him in this case, and if you so find from the evidence beyond a reasonable doubt, the homicide would be manslaughter under the law herein given in this charge.
"14. If on the other hand you find that the defendant called the deceased out to interrogate him concerning language or conduct attributed to deceased concerning defendant's wife, and with no intention to provoke a difficulty with deceased with the intention to kill or inflict upon deceased serious bodily injury, then you are instructed that defendant's right of self-defense would in no way be limited, and if under such circumstances the deceased attacked the defendant with a drawn knife or otherwise, or it reasonably appeared to defendant that such was the intention of the deceased, then the defendant would have the perfect right of self-defense as explained to you in this charge.
"15. On the other hand, unless you find from the evidence beyond a reasonable doubt that the defendant provoked a difficulty with the deceased for the purpose and with the specific intentions as above explained to you in this charge, then you are instructed that the defendant's right of self-defense would in nowise be limited, and if you find that deceased, Will Phillips, was advancing toward defendant with a knife for the purpose of killing or inflicting upon defendant serious bodily injury, or if you believe that it reasonably appeared to the defendant, viewed from his standpoint, that it was the intention of the deceased so to do, and that defendant, to save his own life or to protect himself from receiving serious bodily injury at the hands of the deceased, Will Phillips, or from what reasonably appeared to him to be such viewed from the defendant's standpoint, and that under such circumstances he shot and killed the deceased, then you are instructed that the defendant would be justified in killing deceased, and if you so find the facts to be you will acquit the defendant and return a verdict of `not guilty.'
"16. You are further instructed that if the defendant had been informed by his wife that deceased had been guilty of insulting language or conduct towards her, the defendant would have the right to arm himself and go to the deceased to inquire of him in regard thereto, and to demand an explanation from the deceased, and if in so doing the deceased made an unlawful attack upon the defendant for the purpose of killing or inflicting upon defendant serious bodily injury, or if, viewed from defendant's standpoint, it reasonably appeared to defendant that such was the intention of the deceased, then the defendant would have the right to defend himself against such real or apparent danger, and if in so doing he killed the deceased, he would be guilty of no offense whatever." *Page 476
This presented the question as favorably as defendant had a right to ask. The charge did not authorize the jury to convict him of any higher grade of offense than manslaughter, and if the jury believed under the facts, beyond a reasonable doubt, that the evidence, under the thirteenth paragraph above quoted, took away from defendant the right to claim to have acted in self-defense, they are the exclusive judges of the facts proven by the evidence. And if the circumstances there alleged are true, and they so found, none can claim that he acted in self-defense. Defendant's side of the case was presented in the charge, and the jury could have found that he killed the deceased in self-defense, or they could have found that he killed him in an ungovernable rage because of the insult to his wife, or they could have found that he was not in such an ungovernable rage as to render the mind incapable of cool reflection, and provoked the occasion for the killing in order that deceased would turn on him and he could justify his conduct. On the other hand, the jury may have found the State's theory true — that defendant shot deceased in the back when he was attempting to get away. Every theory of the defense was fairly presented, and he can not complain.
It is hardly fair to take an isolated paragraph of the court's charge and criticise it. In his brief appellant criticises paragraph fourteen of the charge, claiming that it shifted the burden to defendant, but when we read paragraph fifteen it is seen that the claim is not justified, for in that paragraph he tells the jury that, unless they so find beyond a reasonable doubt, his right of self-defense would not be limited, and again in paragraph twenty the jury are told that they must find defendant guilty beyond a reasonable doubt or acquit him.
Again, the defendant criticises the court's charge on self-defense, saying that the appearance of danger is not presented. If one will read paragraphs nine and ten, eleven, twelve, fifteen and sixteen, it will be seen that the apparent danger as it appeared to defendant, as well as actual danger, was presented very favorable to defendant, where there were no threats in the evidence.
Having examined the record closely, and finding no error, I concur in the opinion overruling the motion for a rehearing.
Overruled.