In appellant's motion for rehearing our attention is called to certain matters complained of which were not adverted to in our original opinion. The court charged on provoking the difficulty. The language of the charge applying the law of such issue to the facts is as follows:
"Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant shot at the said Will Jackson, if he did shoot at him, did so under circumstances that otherwise would be self-defense as explained in this charge, but that the said Caraway, the defendant, was guilty of acts which provoked the situation requiring him to defend himself, and that under such circumstances he fired upon the said Will Jackson with intent to kill him, but by mistake or accident killed the said Marvin Leo Jackson, then you will find him guilty of manslaughter and assess his punishment at confinement in the penitentiary for any term of years not less than two nor more than five."
This charge was excepted to from various angles. That it is erroneous is apparent. One whose acts provoke a situation wherein he has to defend himself, who does so without intending thereby to provoke a difficulty, or who does so without intent to use the provoked assault as a pretext for killing or injury, — does not thereby forfeit his right of perfect self-defense. The charge quoted is stripped of instruction as to any intent of appellant in the premises. There was no question but that he went to the place where the shooting occurred, carrying his gun; nor of the fact that at said place and while in his own field but near the home of Will Jackson, he struck Jackson's wife with a stick and almost immediately thereafter appellant and Jackson fired at each other at or about the same time. It thus could easily be seen how hurtful might be the instruction given, unless qualified by the further statement to the effect that in order to forfeit his right of self-defense the defendant must have intended by his acts to provoke such difficulty, which he purposed using as a pretext, etc. and that what he did was reasonably calculated to effect that purpose. *Page 124
Another thing, — said charge on provoking the difficulty wholly fails to submit the converse of said proposition, and made no application of the law to the facts in case the jury found there was no intention on the part of appellant to provoke a difficulty in what he did. Mr. Branch collates many authorities in Sec. 1958 of his Annotated P.C. which hold that it is error to refuse to charge the converse of such theory when the affirmative thereof is submitted. The matter is discussed at some length in Mason v. State, 88 Tex.Crim. Rep., 228 S.W. Rep., 952.
Believing upon more mature reflection that the charge of the court was fatally defective in the matters above discussed, and that we erred in our affirmance, the motion for rehearing will be granted, the affirmance set aside and the judgment now reversed and the cause remanded.
Reversed and remanded.