When one accused of homicide pleads self-defense, it is not infrequent that his rights in this regard are limited or abridged by an instruction on provoking the difficulty. It seems to some extent idle to debate whether there be a "difficulty" when one man gets shot by another. In the instant case the defense offered testimony whose effect, if same was believed by the jury, was that deceased made ugly remarks, insulting statements, threats, etc., immediately preceding the shooting, which so enraged appellant as to cause him to get his shot gun, go toward deceased who then made a threatening gesture as if to draw a weapon, upon which appellant shot and killed deceased. Such testimony was admissible both as showing the condition of the mind of appellant prior to and at the time of the homicide, as rebutting any theory of malice, and as showing that the killing was in self-defense, and also as rebutting the proposition that appellant provoked the difficulty. All of appellant's rights resulting from the above facts and based on such testimony, were protected and guarded in the court's charge submitting the various phases of the case from the defendant's standpoint.
In determining whether there be evidence calling for a charge on provoking the difficulty, ordinarily same would not cause the trial court to go beyond the State's evidence, though in some cases this might not be true; but if there be such evidence, it would be the duty of the court to submit the law of such issue, even though the trial court might believe the evidence on the part of the accused to be sufficient to overcome or rebut the theory of provoking the difficulty. The settlement of whether the issue be sustained or rebutted would be for the jury.
In his motion, and contention elsewhere, that the converse of the charge on provoking the difficulty was not submitted, — it seems to us that appellant has overlooked the additional charge given by the court. In same the court said:
"Gentlemen of the Jury: In connection with paragraphs 14, 15, 16, and 17 of the court's main charge, you are further instructed that if you should find, or have a reasonable doubt thereof, that the defendant Elzie Crowley did no act to provoke a difficulty with deceased Dick Anderson, and spoke no words calculated to provoke a difficulty, or an attack upon the defendant, by the deceased Dick Anderson, then in such an event the defendant's right of self-defense would not in anywise be abridged or lessened, and you will decide in that event the issue of self-defense in accordance with the law on that subject contained in paragraphs 10, 11, 12 and 13 of the court's main charge and also the defendant's special charge relating thereto, and without reference to the law on the subject of provoking the difficulty."
Paragraphs 14, 15, 16 and 17 of the main charge, referred to in said *Page 377 additional charge above quoted, were those in which the law relative to provoking the difficulty was stated. We note that the only exceptions taken by appellant to the charge, were to "The main charge of the court." If any exceptions were addressed to said additional charge quoted, we fail to find same. Paragraph 17 of the main charge was intended to present the converse of provoking the difficulty, and seems to do so, but if there could have been any question as to its sufficiency in this regard, there could be none when said additional charge is taken together with said paragraph 17.
In our original opinion we set out some of the State's testimony, — not for the purpose of stating that such facts were not controverted, nor for the purpose of stating that we believed them to be true, or that they were true, but merely as making it plain that the trial judge was not without ground for submitting said issue of provoking the difficulty to the jury.
The trial court told the jury in paragraph 16 of the charge that even though appellant did provoke the difficulty, if same was without intention to bring about a difficulty in which he might kill or inflict serious bodily injury, — or if the jury had a reasonable doubt on this point, if they convicted they could not inflict a penalty of more than two to five years. We think this correct.
We have endeavored to give to appellant's motion careful thought and consideration, but are unable to agree that the case was wrongly decided.
The motion for rehearing will be overruled.
Overruled.