The judgment of conviction in this case was reversed on a former day of this term on the sole proposition that the trial court erred in refusing to grant an application and motion of appellant to disinter the body of deceased and arrange for examination by competent physicians to ascertain the number of bullets lodged in his body, which could have been done, and the effect of which, if favorable to appellant and in accordance with the facts, as he averred they were, would have corroborated his testimony to the effect that deceased was shot in front. The correctness of this decision is vigorously assailed on motion for rehearing. In view of the novelty of the question as well as its importance, counsel for the State were requested by the court to submit the question on oral argument, which they have done with great ability and with great candor. In deference to their insistence and the earnest dissent of our brother Brooks, we have again reviewed the question from every point of view, and have arrived at the settled conviction, which *Page 107 has been rather strengthened by our subsequent investigation, that the original opinion was right — the law, and that it ought to stand.
It was conceded in argument by counsel for the State that the statement of the facts in the case as contained in the opinion was in every respect fair, true and correct, and as favorable to the State as counsel themselves would have stated them, except the facts relating to the phase of the case from which the issue of provoking a difficulty was sought to be established, and which had the effect, as the State claims, to debar appellant from the right to have submitted at all the issue of self-defense. Counsel for the State are correct in their contention that the facts were not fully stated, as to this phase of the case and it may be further admitted that the additional statement, which will hereinafter appear, adds some support to their contention. It was not our purpose when the original opinion was offered to state all the facts in respect to this matter, for the reason, as we viewed the case, there was no serious suggestion in our minds that appellant was denied his right of self-defense by reason of anything said or done by him at the time of the difficulty, and the statement of the facts contained in the original opinion on this issue was intended to be no more than a brief summary of these events for the purpose of illustrating how the difficulty came up. In deference to the contention of counsel for the State, and with a view of making the opinion complete, we now state certain additional facts or phases of the case developed on cross-examination. On cross-examination appellant testified, substantially, as follows: "The first thing I said to him after we reached the fence, was, `Will, wasn't you always treated right at my house?' He said, `Yes.' I then said, `Was you ever mistreated' and he said he wasn't. I think I then said, `God damn your heart, what did you treat Nora like you did for?' I do not know whether I called him a son-of-a-bitch at that time or not; I don't think I did. I might. I do not remember whether or not I testified at the last trial of this case that I called him a son-of-a-bitch then. I might have. He said he didn't blame me for being mad but he was not going to take any abuse off of me; he said he would be mad, too; he would be just like I was. I said, `You God damn son-of-a-bitch I have got abuse to give you whether you take it or not.' I don't know as he said anything then. He stood there a little while and walked to the back part of the store; he had to go by me; he did not say anything more there; he might have said something but I do not remember it. I do not know that I followed him. I was going towards the store. He was a little in the lead; he started first. I walked behind him going in the direction of the store. I guess I was abusing him going along there. "Q. Didn't you testify at the first trial of this cause as follows in regard to that: `I don't know what was said until we quit talking just before we got to the back door there; he sorter turned around and I was still abusing him.' *Page 108 Then he said, `God damn you, shut up'? A. Yes, sir; I suppose I was still abusing him.' I then said to him, `You God damned son-of-a-bitch, you will have to make me;' he sorter turned round to me before I made that statement; he said, `God damn you, shut up.' He made that statement and started at me with his knife. When he said to me God damned you, shut up, I might have said to him, `You God damned bastardly son-of-a-bitch.' I don't remember. I know I called him a son-of-a-bitch. Yes, at the last trial of this case I testified that I called him a God damned bastardly son-of-a-bitch; yes, I called him that. He had already turned nearly around to me before I made that statement. He was walking like he was walking to the door and he said, `Now God damn you, shut up,' and turned to the side and finished turning after that. He was right close to the door when he turned, four or eight feet from that south door. He advanced on me when he turned; he started at me. I do not know how many steps. I wasn't looking at him when he started at me. I had to get my gun. When I raised my gun he was advancing on me." While there is more of the testimony, this perhaps states the case as strongly for the State as the reproduction of all of it would do. He also in this connection testified that he had killed deceased in self-defense, to save his own life and because he was mad.
It was in substance stated in the opinion that if it should be conceded that self-defense was not in the case; that is to say, that by his conduct appellant had, under the facts placed himself in a situation where, as a matter of law, he would be held to be guilty of provoking the difficulty, then it must be conceded that his application for the body to be exhumed and examined ought to be denied, since, if there was no self-defense in the case, the result of such examination, even though in every respect it supported the testimony of appellant, could serve no useful purpose. On reflection, however, it is clear that there is another ground on which the testimony sought would have been of great value to appellant. It is, we think, a settled rule that appellant is entitled to all testimony which may and will have the effect to lighten his punishment and tend to mitigate the severity of the sentence which the jury may impose upon him. Tested by this rule, it is obvious that there was one view of the case which would in any event make the testimony admissible. The verdict of the jury of necessity affirmed their belief that deceased had been guilty of insulting conduct towards appellant's wife. There was no other issue or ground upon which they were justified in finding him guilty of manslaughter. The State sought to show and its whole case was directed to prove that appellant shot deceased in the back while he was either running or retreating from him. Now, if appellant could have shown that in truth he shot his adversary while face to face and either engaged or about to engage in a mortal combat, it must be clear that he would have been put in far better *Page 109 light before the jury than he would have appeared should they have believed, as the State contends, that he shot his enemy in a cowardly manner in the back. We do not, however, rest the case on this proposition. We re-affirm our opinion that the evidence in this case did not conclusively show that the acts and conduct of appellant at the time were of such nature and character as would, as a matter of law, make him guilty of provoking a difficulty so as to cut off wholly his right of self-defense. This was, as we have stated in the original opinion, the judgment and the belief of the learned trial court, and on this theory the whole case in the court below seems to have been tried. It is well settled in this State by an unbroken line of decisions that no defendant in any case can be or has ever been held to be guilty of provoking a difficulty unless his intent so to do was gathered from the testimony. It is equally well settled that this question of intent is a question for the jury. The issue and matter of provoking a difficulty implies of necessity a certain craftiness and design. It implies of necessity an intent and purpose on the part of the person killing and a disposition or purpose to do some act, the effect of which shall be to cause his adversary to attack him, so that by appearance, at least, he shall be protected by law and the death have the appearance of being in self-defense when in truth it was in pursuance of a purpose either to kill or injure his enemy. Whether such design exists in any given case is, of course, a matter for the jury, and such intent was a question for the jury in this case. It would be idle and mockery to say that in a case where the law says that by an outrage against the wife of his bosom and the mother of his child with the defendant's mind so wrought up and wrought upon as to render it incapable of cool reflection, that he should, merely because he uses some word or abuse, forfeit his right of self-defense. The law in this case is, if appellant had believed, as under the facts he was justified in believing, that the deceased, who was his friend, had, under the sanctity and protection of his home, as his guest, insulted his wife by making indecent proposals to her, that this is an adequate cause rendering his mind incapable of cool reflection. The law says again that in such state of case he has a right to go to the deceased; he has the right to demand an explanation. He has a right under the law to arm himself, if his purpose be for his own protection only in event of an attack by his adversary, and to say that in such a case that he shall be held down by the strict rules of the law, to use only the soft speech of the drawing room or the suave language of diplomacy, is to make the right which the law gives him pure mockery. The law in its wisdom wisely provides that whether in any given case he shall be held guilty of provoking a difficulty so as to cut off his right of self-defense, must, as a matter of fact, be a matter of intent to be gathered from all the circumstances. This is no new doctrine in this State. Among the earliest decisions of this court on this question is the case of Shannon *Page 110 v. State, 35 Tex.Crim. Rep., rendered by Judge Simkins. In that case it seems the deceased had made some remark concerning the defendant, in the presence of ladies of their acquaintance, in substance, to the effect that he was a coward. He was approached by Shannon, and said, in reply to a request for an explanation, "What I said then, I say now." Appellant then replied, "If you say I am a damn coward, you are a damned liar." Deceased again repeated, "What I said then I say now," and appellant said, "You are a lying son-of-a-bitch." In this case, when the first inquiry was made by appellant as to whether deceased had mistreated his wife, there was no denial; on the contrary there was a substantial admission of the insult. The deceased's reply is "I don't blame you for being mad. I would be mad, too, but I don't intend to take any of your abuse." It is in effect saying "I did insult your wife. Do your worst." In the Shannon case, summarizing the matter, Judge Simkins says: "To concede the remark was in fact made, it simply tends to prove that appellant had a grievance which impelled him to seek an explanation, to wit: that deceased had characterized him, in the presence of ladies, as a coward. But the vital question in the case, whether the interview was sought for the purpose of provoking a difficulty, must be clearly shown by the facts attending it, and not alone by the remarks of an excited boy amidst the bloody circumstances of his first difficulty. We do not feel satisfied with the verdict, and think a new trial should have been granted." This case and the doctrine here laid down has been followed with approval in many cases, of which the following are a portion: Winters v. State, 37 Tex.Crim. Rep.; Airhart v. State, 40 Tex.Crim. Rep.; Young v. State,41 Tex. Crim. 442; Hall v. State, 42 Tex.Crim. Rep.; Doss v. State, 43 Tex.Crim. Rep.; Hall v. State,43 Tex. Crim. 479; Melton v. State, 47 Tex.Crim. Rep.; Beard v. State, 47 Tex.Crim. Rep.; Craiger v. State,48 Tex. Crim. 500; Craiger v. State, on rehearing, 48 Tex. Crim. 503; Keith v. State, 50 Tex.Crim. Rep.; Mitchell v. State, 50 Tex.Crim. Rep.; Sanders v. State, 50 Tex. Crim. 430; Stewart v. State, 52 Tex.Crim. Rep..
To hold, as a matter of law, in this sort of a case that by precipitancy of speech, even by characterizations as insulting as those set out in the statement of facts, that appellant shall be held to forfeit his right of self-defense, is not absolutely to be assumed in the trial of such a case. To say that appellant has indeed the right to demand an explanation, the right to seek out the despoiler of his home or the author of the insult to his wife, and yet to say to him that every inconsiderate speech shall deprive him of the right of self-defense, is to make the right which the law grants him worse than useless. It is on a par with the judgment of Portia, which did indeed decree to Shylock his pound of flesh to be taken from Antonio's bosom, but with it ran the judgment, if in so doing he shed one drop *Page 111 of Christian blood, that all his fortune be confiscated under the State of Venice. Such a position as we conceive can not be sustained in law or in reason and is opposed to every generous impulse of humanity.
So we come back to the question, and, as we conceive, the only question which is considered to be both serious and important, as to whether the court had the authority under the law to grant the request made by appellant. On this question appellant makes a strong showing, and it must be conceded is not by analogy at least without much support in the authorities. The chief reliance of the State is upon the case of A. N.W. Ry. v. Cluck,97 Tex. 172. In that case Cluck sued the railway company for damages for the injury which was alleged to have occurred through their negligence. Application was made by the defendant company for the appointment of a commission to examine the plaintiff therein on the ground that such an examination was necessary to the ends of justice, and with other allegations which it may be stated are sufficient to have induced action by the court as prayed for, if it should be held that the court had authority so to do. In the opinion in that case by Judge Brown, it in terms stated that "The right to have such examination is supported by the greater number of decisions of the courts of the States of this Union and by the text writers. The following cases support the right asserted: Richmond D. Ry. Co. v. Childress,82 Ga. 719; Shepard v. Missouri P. Ry. Co., 85 Mo., 629; Alabama G.S. Ry. Co. v. Hill, 90 Ala. 71; White v. Milwaukee City Ry. Co.,61 Wis. 536; Atchison, T. S.F. Ry. Co. v. Thul, 29 Kan. 466; Schroeder v. Chicago, R.I. P. Ry. Co., 47 Iowa 375; Sibley v. Smith, 46 Ark. 275; Missouri M.T. Ry. Co. v. Bailey, 37 Ohio St. 104; Lane v. Spokane, F. N. Ry. Co., 21 Wash. 119; Wanek v. City of Winona, 46 Law Rep. Ann., 448; Graves v. City of Battle Creek, 95 Mich. 266; City of South Bend v. Turner,156 Ind. 418; Brown v. Chicago, M. St. P. Ry. Co., 95 N.W. 153. However, the right in this State is squarely denied and seems to be arrived at, in part, on this proposition: "Whatever may be the powers of courts of other States, there can be no doubt that the courts of Texas must look to the Constitution of this State, the enactments of the Legislature, and the common law, for their authority to proceed as requested in this case, and, if the authority did not exist at common law, and has not been conferred by the Constitution, nor by the statutes of this State, then no court in Texas has the power to force any citizen to submit to a physical examination under such circumstances." Much importance also seems to be attached in this opinion to section 9, article 1 of our Bill of Rights, which is as follows: "The people shall be secure in their persons, houses, papers and possessions from all unreasonable seizures or searches and no warrant to search any place or to seize any person or thing shall issue without describing them as near as may be, nor without probable cause supported by oath or affirmation." Again, in this case, some importance, as a matter of procedure, and in a measure *Page 112 in justification of the rule, is attached to the right given by law to the defendant in a civil case to take depositions of the plaintiff so that the facts in respect to his injuries may be developed, and it is said that this operates under our system as in the nature of a bill of discovery. Again, it is said and held in that case that the railway company had the right to ask him and require him to answer in the presence and hearing of the jury as to whether or not he was willing to consent to an examination by skilled physicians with a view of ascertaining the nature and extent of the ailments. And it is said "that the reason for refusing a physical examination of the plaintiff is not that the defendant is not entitled to have the benefit of the evidence, but because the court has no power to force the plaintiff to submit to such examination. He has the right to submit or refuse, but in case he should refuse, the defendant is entitled to have that fact go to the jury to be considered by them in determining upon the credibility and sufficiency of the testimony upon which he seeks to recover." Again, finally it is said, "In case of unreasonable refusal to allow examination, the court could and should set aside the verdict unless the evidence satisfactorily established the right." It is to be conceded that by analogy the opinion in this case is adverse to our views, but it is not believed that it meets the issue here; on the contrary it is easily distinguishable from this case. We have the most profound respect for that great tribunal, but candor compels the statement that the reasoning of the court as applied to the case at bar is not convincing nor the conclusion sound as affecting the decision here. Evidently the constitutional guaranty to which much importance seems to be attached could have but little application to this case, and many of the reasons which are noted as justifying the decision could not in any sense apply. In that case as in other civil cases, the statute, of course, gave the defendant the right to take the depositions of the plaintiff, and develop as far as may be the facts. In this case the adversary of appellant is dead and no writ of man can call him from the unseen world, and cause a disclosure of the facts of his injuries. In the Cluck case it was stated that the defendant there had the right to demand of the plaintiff in the presence of the jury an answer to the question as to whether he was willing to submit to the examination requested, and that the railway company was entitled to the benefit before the jury of his refusal to submit to the examination and of such inference unfavorable to him as they might draw from his refusal to so submit. In this case the deceased is not a party to the record nor are his heirs at law, and the appellant here could not in the nature of things have the benefit of a refusal of the appointment of the commission sought. Again, it is stated in the opinion in the Cluck case, "In case of unreasonable refusal to allow examination, the court could and should set aside the verdict, unless the evidence satisfactorily established the right." It is not seen how the refusal could be made effective in this case *Page 113 or be made the basis of the ground of the motion for a new trial. Besides it must needs follow that if for the failure of the court to appoint a commission a new trial should be granted one time, it should always be granted under the same circumstances, and would or might have the result as in this case: a prosecution for murder is begun against a young man in the morning of his life; if the prosecution was sufficiently vigorous under our rule of reproducing the testimony of deceased persons, the prosecution might proceed, by successive grants of new trials, until he came to a "settled age with its sables and its weeds," and go on until death claimed him, with the matter still unsettled, when if the power had been exercised, which we believe inheres in every case, and the judge should avail himself of the power, which we hold he possesses, he might obtain in the very shadow of the courthouse, by the examination sought a most irrefragable proof of defendant's innocence or guilt. We believe that whenever it shall be necessary to the ends of justice that an examination of the inanimate body of the deceased in the jurisdiction of the court, should be made, that the court has the power and should exercise the right to require the exhumation made. It is contended, however, in argument that to allow this examination would lead to consequences of the most serious character, and would or might be frequently abused. We were not unmindful in preparing the original opinion of this fact, and it is there stated, as we now re-state, that it ought not to be allowed in any case unless it was imperatively demanded under the circumstances and was necessary for the due administration of justice. We prefer to believe that in such a tribunal as the district court it should never be held that "weary winged truth bearing the facts should find no spot on which to rest her feet," but on the contrary the portals of the temples of justice should stand ever open "on golden hinges turning" to welcome and receive her. If it can be said that there is no precedent for action, it can never be said again, because the rule and precedent is herein established.
Let the motion be overruled.
Overruled.