Conviction for murder; punishment, fifteen years in the penitentiary.
This is the second appeal. The opinion upon the former appeal will be found in 118 Tex.Crim. Rep., 40 S.W.2d 131.
We see no good to come from an extended statement of the facts. It was admitted that appellant killed deceased by cutting her with a butcher knife. Self-defense was interposed, appellant claiming that deceased had threatened her, and that at the time of the homicide deceased had a piece of iron pipe. She testified:
"She drew back the pipe, and I clinched into her and we tussled, both down on the ground; I was spanking her with the side of the knife; she went to biting me on the leg. I got away from her and was putting my shoe on, * * * and she hit me back of the head with this rock. * * * I caught her and just punched at her with the butcher knife. She was standing there trembling or wiggling, and she fell down."
The state introduced all the parties who were eyewitnesses to the occurrence, save appellant herself, and these witnesses contradicted the testimony of appellant. It was shown that the two women met at the house of a man named Bailey, and that appellant asked deceased if she was carrying that piece of iron for her, and deceased asked appellant if she was carrying that butcher knife for her. Bailey said he told them both to go on away, that he did not want any trouble there, and, in line with other state witnesses, testified that deceased started away *Page 166 toward her home, and that appellant followed her and threw two rocks at deceased. A witness who was present at the time appellant overtook deceased said, when appellant advanced upon deceased, and used some language which witness did not understand, that deceased raised the piece of iron pipe, and appellant at once grabbed her and they fell to the ground. All these witnesses united in saying that deceased did nothing to appellant, threw no rocks at her, and made no motion to do anything with the small piece of iron pipe she had in her hand until appellant got up to deceased and advanced upon her with the butcher knife. It appears that deceased was afflicted with rheumatism, and one of appellant's witnesses testified on cross-examination that deceased had been using said piece of iron pipe as a walking stick. The butcher knife used by appellant had a long keen blade eight or nine inches long; deceased was cut in a number of places and stabbed through the heart.
Reviewing appellant's complaints as they appear in her brief, we can not say the court erred in rejecting testimony offered by the defense going to show that the pipe had by deceased was a deadly weapon, or such a one as could produce death or serious bodily injury, there being no bill of exception in the record complaining of the rejection of such testimony; nor is there any bill of exception bringing forward complaint of the admission of any testimony from state witness Welch. Mr. Welch swore that he took a written statement from Millett, a defense witness, but the statement was not offered in evidence, nor was Mr. Welch asked to testify to any or all of the contents of such statement.
Appellant insists that his exception No. 2 to the charge of the court points out reversible error. Such exception is rather lengthy and difficult to understand. It sets out in general terms that the charge limited the rights and defenses of the accused, and failed to submit the statute on presumption of guilt from the use of deadly weapons. We find no testimony characterizing the piece of iron pipe had by deceased at the time of the homicide as a deadly weapon, but do find in the court's charge where he specifically told the jury that, if deceased was armed with an iron pipe which was calculated or likely to produce death or serious bodily injury, and was advancing or about to advance upon appellant with said pipe, then the law would presume that she intended to kill appellant or to inflict serious bodily injury upon her. Certainly a charge "limiting the rights and defenses of the accused" is not wrong, unless same be of such nature as to unduly limit same. The court *Page 167 charged on self-defense against real or apparent danger as same appeared from the standpoint of the accused, and also as justified by threats by the deceased when accompanied by a demonstration. We are unable to see wherein any right of the accused was unduly limited or abridged.
Appellant has an exception covering a page and a half of the transcript to the giving of a charge on provoking the difficulty. We have analyzed as carefully as we can said charge. In it the jury were told that, if they believed beyond a reasonable doubt that appellant, before the difficulty began, did some act, or used language, or both, with the purpose of producing the occasion to kill deceased by inducing deceased to make an attack upon her, and that the acts or language of appellant were reasonably calculated, under the circumstances at the time, to provoke a difficulty, and that such acts or language of appellant, if any, caused deceased to attack appellant, or make other hostile demonstrations toward her, following which appellant, in pursuance of her original unlawful intention, cut and killed deceased, a plea of self-defense would avail her nothing, but she would be guilty of such phase of murder as the facts might evidence. Appellant's complaint seems not directed at the manner or form of this charge, but at the giving of same at all. This is true of the giving of the converse of the charge on provoking the difficulty, to which no exception was taken, but in her brief appellant insists that the facts did not call either for the giving of the charge on provoking the difficulty or the converse thereof. We are not in accord with this contention. Not only does the preponderance of the testimony show that appellant followed deceased, but also that she threw rocks at her, and, when she advanced upon deceased, she was saying things to her, following which deceased seems to have raised the piece of iron pipe. This demonstration furnished appellant the basis for her claim of self-defense. Unquestionably, if appellant by her acts and conduct intended to provoke deceased to make some demonstration which would furnish her a pretext for killing the latter, it would be the duty of the court to submit to the jury the law of provoking the difficulty. We have reviewed each of the other complaints made in appellant's brief, and are constrained to believe none of them present reversible error.
The judgment will be affirmed.
Affirmed. *Page 168
ON MOTION FOR REHEARING.