According to the testimony of the appellant, he and the deceased, on several occasions antecedent to the homicide, had had wordy altercations. During the absence of the appellant, his wife (daughter of deceased) had taken her child and gone to the home of her father. According to the appellant, he had been told that his life had been threatened by the deceased, and desiring to have the matter explained, he armed himself and went to the home of the deceased. According to his testimony, appellant entered the front door, and deceased said: "What are you doing here?" Appellant replied: "I have come to see about my wife and baby." Deceased said: "Didn't I send you word never to cross my path or come down here and to stay away from here?" Appellant replied: "Yes, sir; I haven't seen my wife and baby in this time." Deceased said: "I told you not to come down here. Get out." About this time Frankie McCormick left the room and her husband entered with a hammer in his hand. About that time deceased said to appellant: "I told you to get out of here and never *Page 533 come down here or put your foot on this place." At that moment McCormick pitched the hammer to the deceased and said: "Here, take this hammer." McCormick went back in his room and returned with a shotgun. Deceased then had a hammer and McCormick had a gun. Deceased had his hammer drawn back as if to strike the appellant, and McCormick came with a gun. Appellant said:
"Mr. McClurkan made a step, had his hammer drawn back, looked as if he was going to hit me, and Mr. McCormick coming with the gun. I made for the door sideways, shooting as I went for protection. * * * At the time I shot I believed McClurkan was going to carry those threats into execution. I thought Mr. McCormick was going to use the gun."
Appellant said that he took his pistol out when the deceased got the hammer and when he saw McCormick with a gun.
Mrs. John McCormick, appellant's sister-in-law, testified that she was present when the appellant arrived at her father's house; that she heard her sister say: "Finis," and her father say, "Ah, Finis," and observed the appellant standing in the doorway. He had opened the door and stood there with a pistol in his hand. He said: "I heard that threat you made yesterday." The deceased said nothing. The witness ran into the adjoining room to her husband, who was fixing the door with a hammer. He ran into the room with the hammer in his hand. Appellant said: "What are you doing with that hammer?" McCormick said he had been fixing the door and threw the hammer on the chair. The witness left the room and afterwards heard shots fired.
John McCormick testified that when he entered the room the appellant had a pistol in his hand. The deceased was sitting upon a chair about ten feet from the appellant. They were facing each other. Appellant asked the witness what he was going to do with the hammer he had. The witness said: "Nothing," and pitched the hammer on the chair which was situated at a different place from that in which the deceased was sitting. Appellant said to McClurkan: "I heard the threat you made about me yesterday." Deceased replied: "I never made any threat against you." The witness told the appellant that he did not think the deceased had threatened him or intended to hurt him. Appellant then walked to the front door and shot the deceased three times. The deceased fell from the rocking-chair in which he was sitting. He at the time had a book in his hand which he had been reading. The witness then went and fired at the appellant, who fired twice at the witness. *Page 534
Appellant insists that the evidence was not such as to present the issue of provoking the difficulty, contending that the inquiry before the jury was who began the difficulty. The precedents illustrating the distinction between the two theories mentioned are referred to in the opinion of Carlile v. State, 96 Tex.Crim. Rep.. In that case, quoting from a text-writer, it was said:
"To render appropriate a charge on the law of provoking the difficulty, there must be evidence that 'the accused willingly and knowingly used some language or did some act after meeting his adversary reasonably calculated to lead to an affray or deadly conflict, and unless such act was reasonably calculated and intended to have such effect, the right of self-defense would not thereby be forfeited.' " Ruling Case Law, Vol. 13, p. 833, Sec. 137; Roberson v. State, 83 Tex.Crim. Rep., and cases therein cited.
It must also appear that an attack or demonstration was made as a result of the provocation. In the present case, according to the appellant, he was the subject of an attack by both the deceased and his son-in-law when the fatal shots were fired; that this attack was made at a time when the appellant was an armed intruder in the home of the deceased. If appellant had a right of self-defense, it arose from the fact that he was the subject of an attack by the deceased and his son-in-law, McCormick. According to his testimony, this occurred after his entry into the house uninvited and unwelcomed, and after he had begun the conversation. The jury were to judge from the testimony before it, that of the state as well as of the appellant, and determine what words were said and acts done. Manifestly, the testimony authorized the conclusion that any assault that was made by the deceased and McCormick was due to the words and conduct of the appellant after he reached the home of the deceased. The jurors were likewise justified in concluding that the conduct of the appellant under the circumstances, viewed in the light of the previous relations of the parties, as claimed by the appellant, were reasonably calculated to invite an attack by the deceased and his son-in-law McCormick. The intent with which the appellant engaged in the enterprise, with which he went to the home of the deceased, and with which he used the words and did the acts which he recounted after reaching there was a question of fact for the jury to determine under an appropriate instruction from the court. Upon his testimony, especially as supplemented by that of the state, that at the time he entered the house the appellant had a pistol in *Page 535 his hand and that his words and his manner were offensive, the court was bound in his charge to qualify the right of self-defense by instructing the jury upon the law of provoking the difficulty. This was done in a manner which to our minds accords with approved precedents as mentioned in the original opinion. The appellant's right to an interview and explanation from the deceased without the forfeit of his right of self-defense was guarded by a charge to the jury to the effect that he would not forfeit his right of self-defense by arming himself. For additional authorities, see Roberson v. State,83 Tex. Crim. 244, and cases therein cited; also Stanley v. State, 81 Tex.Crim. Rep..
In his motion for rehearing appellant insists that the charge on provoking the difficulty fell short of the legal requirements. The paragraph of the charge challenged reads as follows:
"On the other hand, if you find that the acts done, or language used by defendant, if any, was not under the circumstances reasonably calculated to or intended to provoke a difficulty, or an attack by deceased upon defendant, or if you have a reasonable doubt thereof, you will decide the issue of self-defense in accordance with the law on that subject given in other portions of this charge, wholly disregarding, and without reference to the law on the subject of provoking the difficulty."
We fail to find any exceptions addressed to the charge of the trial court on the ground that the converse of the law of provoking the difficulty was not sufficiently charged. Such criticism as appears to have been addressed to the trial court advanced the idea that that particular paragraph of the charge quoted above should have contained an instruction to the effect that the fact that the appellant was armed would not necessarily deprive him of the right of self-defense. As stated, that subject was specifically embraced in the charge prepared by the court, which must be appraised as a whole.
In his motion for rehearing appellant says that the paragraph of the charge quoted is faulty in that it does not inform the jury that unless appellant was attacked his right of self-defense would not have been justified. In this respect, this criticism is based upon no exception to the charge of the trial court. However, in our opinion, it is not tenable as a ground for reversal. Particularly is this true since the paragraph of the charge quoted comes from subdivision 16 of the court's charge, in which it was made plain to the jury that the right of self-defense would not be impaired unless each of the several elements of provoking the difficulty existed, and enumerating among them this: *Page 536 "The things he says or does, either or both, must be reasonably calculated, under the circumstances, to and do cause thedeceased to attack the defendant." This occurs more than once in the subdivision of the charge mentioned. Moreover, if there had been no attack on appellant or hostile demonstration, the necessity for a charge on self-defense is questionable.
The motion for rehearing is overruled.
Overruled.