Appellant has filed a lengthy motion for rehearing and an able brief thereon, and we have taken time to again carefully study the record and the propositions advanced by appellant; also to read the many authorities cited by appellant.
His contention that one has a right to defend against any character of assault upon him will not be questioned by us, therefore, we deem it unnecessary to discuss the numerous authorities cited, upholding the doctrine that one has a right to act in defense of his person when wrongfully assailed. However, the law is different if one brings on the difficulty, or is the aggressor, or the difficulty is one engaged in by mutual consent. That part of the original opinion wherein we said: "As we read the evidence, no verdict other than the one that was *Page 130 rendered could or should have been rendered, if they believed the evidence offered on behalf of defendant," is most vigorously assailed, and it is said that this must indicate that the court did not consider the issue of self-defense in the case. To determine whether the defendant had the perfect right of self-defense and thus justify his conduct, or only had what is termed the imperfect right of self-defense, which would not justify but only reduce the grade of offense, we must take the testimony offered in his behalf, for by this it is to be determined whether or not any given defensive issue is in the case. The defendant himself testified that the difficulty began thus: That at the depot his boy and Hilrey Barnett were having trouble over a suit case, both having hold of it. That he asked Mr. Alford, the deceased, who got it first, and being informed that Hilrey had done so, he caused his son to turn it loose, when his son said, "Papa, I got it first." After the train left he was talking to Mr. Shelton about this matter and Mr. Alford came by and said something to him. At the time he was talking to Shelton he did not know where Mr. Alford was until he spoke; that he thought Alford had walked out toward the stable, and when he spoke was the first time he knew he was there. He says he told Mr. Shelton he was not going to let no son-of-a-bitch run over his boy — that they could run over him but could not run over the boy. Alford asked him if he was insinuating that he (Alford) was a son-of-a-bitch, and remarked, "if you say I am a son-of-a-bitch, I will whip you in God's holy minutes," starting towards him. That when Alford started towards him he pulled out his knife, and Alford said, "I see you have a knife, put it up and I will whip you." That he told Alford he knew he could do that, but had the knife to keep him from whipping him and that he was not going to put it up, when Alford hit him in the breast with his hand and said, "You cowardly son-of-a-bitch, I will give you the knife and whip you," and grabbed at his throat when he cut him. That is the way he details the beginning of the difficulty on direct examination. On cross-examination he said: "I was mad at John Alford when I killed him. If malice means to be mad at him I killed him with malice in my heart. I was mad at him and I had been mad at him for sometime. When I told Bankston that I didn't want to get into trouble with John Alford because I owed the First State Bank seven or eight thousand dollars I was mad at Alford. I had malice and enmity in my heart towards John Alford then and I had both when I killed him. I hated him. When I said no son-of-a-bitch could run over my boy I was talking to Shelton, and I was talking about John Alford or any one else that would try to do it. When I said that I had John Alford on my mind and no one else at that time. I can't name any one else I had in mind when I said that. I just said no son-of-a-bitch and John Alford had just done it. He was the only man I had on my mind when I made that remark to Ed Shelton."
Thad Jones, a witness for defendant, testified: "As near as I can *Page 131 recollect, what Carver said, was, `Anybody can run over me but no damn son-of-a-bitch can run over my children,' and Alford said, `You don't insinuate that I am a son-of-a-bitch or anything like that, do you,' and then he saw the knife and when he saw the knife he says, `Carver, put up that knife,' and Carver says, `John, I can't do it,' and Alford says, `You dirty coward, you haven't got nerve enough to use it, put it up and I will beat hell out of you,' and Carver says, `I can't do it, I can't fight you fair,' and I had my left hand on Carver's right shoulder and Alford advanced and grabbed Carver that way and says, `You God damn son-of-a-bitch, I will whip you and give you thirty knives,' and they began to fight." On cross-examination he testified: "The first man I heard talking at the beginning of that difficulty was Carver, and I testified that I did not know what he said but that I knew he meant trouble. I knew he was mad at somebody and it seemed like he meant to have trouble. I heard Newt Carver say no son-of-a-bitch could run over his children. Before I heard Carver say that he and Alford had been passing words back and forth. They never did quit talking from the time he started until the fight began. From the time that Newt Carver said no son-of-a-bitch could run over his children they never had quit talking back and forth. Alford was close to Carver when he said that and the controversy was then going on. John had not gone off when Carver said that — had not left there, he was right there and Carver was talking to him before he made that remark. That was not the first abusive language that had passed between either one of them, abusive language had been passing all along. Both of them had used curse words before that time, but that was the first son-of-a-bitch that I heard passed and Carver passed it and at the time he passed it he was then engaged in a controversy with Alford and John Alford's reply was that he must not insinuate that he was a son-of-a-bitch and when he said that he walked up closer to Carver. I did not see Carver get his knife, but he had it in his hand open at that time and I saw it. After that I did not hear Alford say anything about not being armed. It is not true that Carver shoved me back. I had hold of Carver, I don't know how he got loose, but when they went together both of them knocked me out of the way. I don't know which one of them hit the first lick, after Alford grabbed at him they went together. I don't know whether Carver said, `God damn you, do it,' or not. He said something to that effect. My best recollection is that that is what he said. I saw blood there next morning from right about where the fight began to the place where Alford fell."
Ed Shelton, a witness for defendant, testified: "I was present at the Cotton Belt depot on the night of the 11th of July last when a difficulty took place between Newt Carver and John Alford and I heard and saw a part of that difficulty. I had come in on the Cotton Belt train from Waco that night. The first time I noticed Mr. Carver I saw him go up to where a lady was and directly he came back. He *Page 132 went only a short distance, something like twenty or thirty feet. At that time all the persons I noticed right there was Thad Jones, Mr. Carver and myself. After Mr. Carver had been up to the lady and come back he made the remark that there wasn't no son-of-a-bitch going to run over his children and he was nearer to me than he was anybody else and I didn't know but what he meant me or anybody else. Alford was there when he made that statement, something like fifteen or thirty feet away. When Carver said that Alford told him if he was throwing that at him, by God he wouldn't take it and he walked up to Newt from where he was standing. When he walked up to Newt he commenced cursing him and I don't remember what he did say. He told him that he saw he had a knife and called him a God damn son-of-a-bitch and told him he didn't have nerve enough to use it and to put it up and he would fight him fair and Carver told him no, he wouldn't fight him and would not put the knife up and then Alford told him he could whip him if he did have a knife and went on to curse him and told him he didn't have nerve enough to use it and that he would whip him in less time than it takes to tell it and sort of shoved Newt Carver in the breast and when he did that Thad Jones had hold of Carvers' left arm and when he told him he would whip him in less time than it takes to tell it Carver told him to do it and jerked loose." On cross-examination he testified that just before they went together Alford told Carver to put up the knife, and told him he could whip him anyway, when Carver said: "God damn you, do it." He further testified that he was a partner of Carver and went away with Carver and left Alford lying on the ground. This is the testimony of defendant as to the beginning of the difficulty.
The defendant proved numerous threats made by deceased, and the record discloses in the testimony for the State and defendant that the feeling of each toward the other was exceedingly bitter, and had been for some time.
Bob Horn, a witness for the State, testified: "I noticed the boys standing there pulling at the grip and I went in to the express office and when I came out I heard John Alford say, `you needn't insinuate I am no damn son-of-a-bitch.' I don't know who he was talking to. The remark I first heard was: `I am not going to be run over by no damn son-of-a-bitch.' Carver said that, and I don't know what else passed. I walked on out to those posts there and they were squabbling. I couldn't hear what they said, and Jones and Shelton were talking to them and trying to get them not to have any racket. So John Alford said, `Carver, put up that knife and I will whip you in forty seconds,' and Carver ran his hand down and I saw he had a knife in his hand about that long (two and one-half inches). John Alford says, `Carver, do you know what I think about you? I think you are the dirtiest coward that ever walked down the streets of Hubbard City,' and when he said that Newt commenced cutting at him and John throwed up his hand and they were fighting until John's *Page 133 heel caught on the rail and he fell backwards and Carver jumped on him and stabbed him twice and Jones ran up and caught him."
Fred Rice, a witness for the State, testified: "I was present at the Cotton Belt depot in Hubbard City at the time the difficulty came up between N.M. Carver and John Alford. The first thing I heard there that night between them was Mr. Carver saying `I am not going to have Barney run over if I have to kill every son-of-a-bitch in Hubbard.' And Mr. Alford said there was nobody trying to run over him, and Mr. Carver said he had been run over as long as he was going to be. Mr. Carver said that Hilrey had tried to take a grip away from Barney over here this evening. Mr. Alford said, `I don't know anything about that, I wasn't over here,' and Mr. Carver said he wasn't either but he knew Hilrey tried to do it and Mr. Alford said, `You don't mean to call me no damn son-of-a-bitch,' and Mr. Carver pulled his knife out of his pocket and held the knife down to his side, and Mr. Alford says, `I see you have got a knife, you know that I haven't got a thing, put up that knife and I will whip you fair.' He says, `I think you are the dirtiest coward that ever walked down the streets of Hubbard, and if you will put up that knife I will whip you in thirty-seven spaces.' He said he didn't have a thing and when he said that Mr. Carver made a run at him and says, `Do it, God damn you, do it,' and commenced cutting him."
Other witnesses for the State testified to substantially the same thing, and the res gestae statement of deceased will be found in the original opinion, being detailed by Dr. Dunn.
Under such state of facts what is the law of this State? In Logan v. State, 17 Texas Crim. App., 59, Judge White says: "If the defendant voluntarily engages in a combat, knowing that it will or may result in death, or some serious bodily injury which may probably produce the death of his adversary or himself, or by his own wrongful act brings about the necessity of taking the life of another to prevent being himself killed, he can not say that such killing was in his necessary self-defense; but the killing will be imputed to malice by reason of the wrongful act which brought it about," citing 44 Tex. 356, in which Judge Moore says: "It is manifest, though an attack was made by deceased upon defendant, if such attack was occasioned by his own wrongful acts, that appellant can not be held to have acted in self-defense in resisting it."
In this case the first thing that is said or done that occasions the conflict, appellant admits and all the witnesses state, was the remarks of appellant "that he was not going to let no God damn son-of-a-bitch run over his boy." Appellant says he did not know where deceased was at that time, but admits that he was speaking of deceased, was mad at him. His witness Jones, however, contradicts him. He further says that when Alford asked him (appellant) if he was insinuating that he (Alford) was a son-of-a-bitch, he runs his hand in his pocket and takes out a spring-back knife which witnesses describe, and *Page 134 when Alford caught hold of his collar, he cut him with a knife. Applying the rules of law above announced to this recital of facts by defendant, can he claim the perfect right of self-defense? Was he in no wrong? Were not his words and acts the cause of the fatal conflict? If so, the laws says if he entered into the conflict with the intention to kill he would be guilty of murder; if at the time he had no intention to kill, but was driven to the necessity of taking life to save his own he would be guilty of manslaughter.
In Reed v. State, 11 Texas Crim. App., 517, Judge White says: "But the right of self-defense, though inalienable, is and should to some extent be subordinated to rules of law, regulating its proper exercise, and so the law has wisely provided. It may be divided into two general classes, to wit: perfect and imperfect right of self-defense. A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity, and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong — if he was himself violating or in the act of violating the law — and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong. Such a state of case may be said to illustrate and determine what in law would be denominated the imperfect right of self-defense. Whenever a party by his own wrongful act produces a condition of things wherein it becomes necessary for his own safety that he should take life or do serious bodily harm, then indeed the law wisely imputes to him his own wrong and its consequences to the extent that they may and should be considered in determining the grade of offense which but for such acts would never have been occasioned."
In Peter v. State, 23 Texas Crim. App., 687, Judge Hurt approvingly quotes from these decisions, as does Judge Davidson in Carter v. State, 30 Tex.Crim. Rep., and both said it was the law as laid down in those cases. Again in Polk v. State, 30 Tex.Crim. Rep., Judge Hurt, in discussing a case similar to this, holds that "to concede to the fullest extent the witnesses for the defense gave the correct version of the facts in the case, nothing less than manslaughter could have been the result from an honest jury." See also Casey v. State,50 Tex. Crim. 392; Sanders v. State, 50 Tex.Crim. Rep.; Parnell v. State, 50 Tex.Crim. Rep.; Pedro v. State,48 Tex. Crim. 407; Brownlee v. State, 48 Tex. Crim. 412; White v. State, 23 Texas Crim. App., 164; Young v. State,41 Tex. Crim. 446; Beard v. State, 47 Tex.Crim. Rep.; Lahue v. State, 51 Tex.Crim. Rep.; Keeton v. State,59 Tex. Crim. 316, 128 S.W. Rep., 413, and cases cited therein. But it may be insisted that as appellant says he did not see deceased when he used the language, "God damn son-of-a-bitch," he could not have *Page 135 intended to provoke a difficulty of any character in using it. If we concede that he did not know Alford was in hearing of his words, which is not a fair conclusion from all the evidence, but to give the utmost strength to his contention, yet when Alford asked if he meant to insinuate that he, Alford, was a son-of-a-bitch, appellant admits he does not disclaim but instead draws a knife, and when, as he says, deceased assaulted him, he readily entered into the conflict and cut until he killed. To admit that deceased was a violent and dangerous man, had threatened appellant, and was a man calculated to carry such threats into execution, and that appellant knew all these facts, the more reason it was why, when asked if he meant by the language used to insinuate that deceased was a son-of-a-bitch, to have said no, if he did not mean deceased, if he had no reference to him, and there would have been no conflict and no death. On the other hand, appellant on the witness stand admits that he had reference to deceased and hated him, and when he asked the question, promptly drew the knife, and our law says that the use of any dangerous weapon or semblance thereof, in an angry or threatening manner, with intent to alarm another, comes within the meaning of an assault. Had deceased killed appellant, the drawing, opening and exhibition of this knife, with the state of feeling existing between them, it would be claimed that he acted in self-defense when he struck him, and certainly two men engaging in a combat, both can not have acted in self-defense. Our conclusion is that under the peculiar facts of this case, taking into consideration the state of feeling between them, and their previous acts and conduct, neither can justify their conduct on the ground that they were acting in self-defense, for it certainly can not be said that neither had been guilty of no wrong under the evidence. And it further appears that when appellant knew deceased had heard the language he used, he made ready to fight, and entered into it with zeal as soon as deceased struck him first, if he did do so, as contended. In the case of King v. State, 13 Texas Crim. App., 283, Judge Willson says: "Whenever a party, by his own wrongful act, produces a condition of things wherein it becomes necessary for his own safety that he should take life or do serious bodily harm, then, the law wisely imputes to him his own wrong and its consequences to the extent that they may and should be considered in determining the grade of offense, which, but for such acts, would never have been occasioned."
In the case of Pollock v. State, 32 Tex.Crim. Rep., in which the facts as recited show the appellant in that case was approached by Chas. Moody and told he had to take back what he had said, which he agreed to do if another would also do so. He says he was then asked if he had called John Moody a son-of-a-bitch, and, answering in the affirmative, he was struck, and they fought, appellant saying he did not want to fight. In applying the law to the facts in that case Judge Davidson says: "Looking to the evidence, the defendant, though reluctantly, entered into the combat with some zeal, was rough in his *Page 136 remarks, and vigorous in his efforts during the fight. In this attitude it is immaterial who struck the first blow, for both are guilty of an affray. Self-defense is not an issue, and defendant could not justify his action on the ground that he did not strike the first blow."
So in this case, while it may be said to be an issue who struck the first blow, the State's testimony having appellant make the first blow with a knife, and following deceased up as he retreated, yet by his testimony he admits he used insulting language in regard to deceased, and when asked if he meant to apply it to deceased, gets his knife out in his hands, and when struck with the naked hands, strikes back with a knife and continues to do so until deceased falls. Appellant's language was the moving cause at least to a war of words, and then the exhibition of his knife was the provoking cause for an immediate conflict, which he readily entered into, and this being true, we think there was no self-defense in the case, and taking that view, it becomes immaterial whether or not the court properly presented the law as to uncommunicated threats, for we hold that it was appellant's words and conduct on that occasion, viewing it from the standpoint as presented by the testimony introduced in his behalf, that was the provoking cause of the immediate conflict, and it is only in a case where one has the perfect right of self-defense that the law of uncommunicated threats, as they might shed light on who began the difficulty, would be material. And the same might be said as to the court not permitting additional witnesses to be introduced as to deceased being a person of violent and dangerous disposition and one likely to carry a threat into execution. The more dangerous a man, the less excuse there would be for one to use language and conduct himself in a way that he would know, from the nature and disposition of the man, that his words and conduct would produce a difficulty. A man in law is held responsible for his acts and if he expects to claim justification, the record should disclose that he is guilty of no wrong. At least, the failure to permit additional witnesses to be introduced as to the character of deceased would not present reversible error, as he was found guilty of manslaughter only, there being no right of perfect self-defense in the case. However, the court submitted the issue of self-defense, as shown in the original opinion, in a very favorable way, and having done so, certainly the matters complained of, as we view the case, present no reversible error.
The other questions being so fully discussed in the original opinion we do not deem it necessary to do so again.
The motion for rehearing is overruled.
Overruled. *Page 137