On motion for rehearing the case narrowed itself down to one proposition, that provoking a difficulty is not in the case, and, therefore, the trial court erred in putting such limitation upon his theory of self-defense. It is a very close question as to whether self-defense was an issue in the case, but the court resolved this in favor of defendant and gave an instruction on that subject. Appellant contends that provoking the difficulty not being in the case, the judgment should be reversed because of this unwarranted limitation on his right of self-defense. It may sometimes occur that there is rather a narrow margin between provoking a difficulty and imperfect self-defense. It is not my purpose to go into that question. There may be cases of imperfect self-defense arising independent and apart from provoking the difficulty, but in the mind of the writer that question does not here arise. The question of provoking a difficulty, however, in the mind of the writer, is presented by this record.
Judge Prendergast has pretty fully stated the facts and it is deemed unnecessary to restate the evidence. That appellant had been having *Page 583 illicit relations with the woman with whom deceased was in company on the night of the tragedy seems to be conceded. That he knew the deceased had supplanted him, or was about to do so, or was enjoying her favors and friendship, is, I think, shown by this record by the statements of appellant and the testimony of the witnesses. He had had trouble with the woman shortly before this killing for being out with deceased. This is shown by the woman's testimony, and during this trouble between them he struck her a blow in the face. This caused her to refuse to have further relations with him. He and his friend, Wilson, undertook to cause a meeting between themselves and this woman and her sister, which had been declined. They came from Waco through Temple to see these women and were unable to find them. Finding them away from home, these parties went in a jitney about the town seeking them. Finally they discovered the two women and their companions walking along the street or sidewalk. Appellant immediately jumped out of the car with a pistol in his hand and pursued the women and deceased. They ran something like 200 yards, appellant and his friend pursuing them. Appellant, it seems, could not overtake or had not overtaken the deceased and the women, and holloed at deceased, "Run, you son-of-a-bitch." Thereupon it is claimed deceased turned and fired. There is testimony that he did not fire.
Wherever an issue is presented in a case, whether for or against either party during the trial, it is the duty of the court to submit the law applicable to that issue. If there was evidence in the case raising the issue of provoking a difficulty, then it was the duty of the court to submit that issue to the jury. Of course, without the issue of self-defense in the case a charge on provoking a difficulty would not be justified. If appellant chased the deceased and killed him without holloing at him and applying the opprobrious epithet mentioned, or shot him while he was running, and deceased had done nothing, the issue of self-defense would not be in the case. If in chasing the women and deceased, deceased was about to get away, and appellant holloed at him, as it was said he did, the applying of that opprobrious epithet is sufficient to raise the issue of provoking a difficulty under the authorities. After using that epithet and deceased fired, then if appellant had a right of self-defense, this was a proper charge of limitation on his right of self-defense. In Mr. Branch's Ann. P.C., on page 1094, section 1954, will be found a collation of the authorities on the question of provoking a difficulty. It is stated that while the party must have said or done something at the time of the homicide to provoke deceased to attack him so as to have a pretext for killing the deceased, yet prior acts will be looked to to give character to what defendant said or did at the time of the homicide so as to determine his intent and to explain his words and acts. McGrew v. State, 49 S.W. Rep., 228; Mason v. State, 163 S.W. Rep., 66. Under this view of the law the acts and matters preceding, on the part of appellant, and his ill will and bad feelings towards deceased on account of the woman and their relations, would shed light *Page 584 upon the issue of appellant's intent at the time and just preceding the killing and at time of calling him a son-of-a-bitch. It is also laid down by the authorities that if the testimony for the State shows that defendant sought deceased with intent to provoke a difficulty and offered him an insult before the shooting started, it is not error to charge on provoking the difficulty. Barstado v. State, 48 Tex. Crim. 255; Gray v. State, 61 Tex.Crim. Rep.; Sorrell v. State, 74 Tex.Crim. Rep.. It is also held that it is not error to charge on provoking the difficulty if there is testimony to the effect that defendant first cursed deceased before either made an assault, and the State's theory is that defendant made the first assault and defendant's theory is self-defense. Coleman v. State, 25 S.W. Rep., 772; Bateson v. State, 46 Tex.Crim. Rep., 80 S.W. Rep., 88. And where there is testimony that defendant cursed deceased and deceased then picked up a stick and started toward the defendant, this raises the issue of provoking the difficulty, and it was not error on the part of the court to so instruct the jury. Tardy v. State, 47 Tex.Crim. Rep., 83 S.W. Rep., 1128; Best v. State, 61 Tex.Crim. Rep., 135 S.W. Rep., 582. Again it was said in Sanders v. State, 83 S.W. Rep., 712, that the issue of provoking the difficulty is raised by testimony when defendant called prosecutrix a bitch, and that prosecutrix then hit defendant with her fist, and that defendant then struck her with a hatchet.
The writer is of opinion that under all the facts and circumstances detailed prior to and up to the homicide introduced to show the condition of appellant's mind toward deceased with reference to the woman, and that when appellant found them he jumped out of the jitney and chased the deceased and the woman, and when they were about to escape his exclamation to deceased to "Run, you son-of-a-bitch," was intended to arrest the flight of deceased and cause him to fight. If deceased fired the first shot by reason of these acts and this conduct, it would raise the question of provoking the difficulty, and would be a limitation upon his right of self-defense. I, therefore, concur with Judge Prendergast in holding that the question of provoking the difficulty was properly submitted under the facts.