The State has filed a motion for a rehearing herein based mainly upon the statement in the original opinion, as follows:
"We may have overlooked some evidence, or failed to properly appraise some, but have discovered none raising an issue of an attack by appellant at the time Cason struck with the wrench."
The State's motion takes us to task relative to such statement, and quotes rather liberally from the testimony to show us an error therein.
The charge objected to, if called for by the facts, is undoubtedly a correct one, and we have so held it to be in other cases, the latest being Squyres v. State,174 S.W.2d 601, and if such a charge was called for by the facts, then we were mistaken in our original opinion. *Page 213
As showing facts upon which such a charge could be based, we are cited, among others, to the following testimony of J. W. Chapman:
"I saw Seborn Darwin after that, he was coming from the direction of the front of Marvin Floers' garage going towards the pick-up. He was just walking back that way, he was not going too fast, just a moderate walk. He did not have anything in his hands then, but later I saw a knife in his hand. That was after he came to the pick-up, and I started to walk off, I saw the knife in his hand and it was about half open, and he already was at the pick-up, then he did not circle the pick-up, but came straight to it. Mr. Cason was on that side of the pick-up, towards the back of the garage, talking to some man __________ Darwin was coming back that way and the cab was between him and Trammel Cason, and it looked to me like Darwin was keeping the cab of that pick-up between them, and about the time Darwin got to the pick-up, Mr. Cason and this man stopped talking, and the man went out towards the filling station, __________ Mr. Cason then went toward the back of the pick-up; the front of the pick-up was towards Mayes Street, and the back was toward the other wall of the garage; and Cason startedtowards the back of the pick-up, and then Darwin turned andwent towards the back of the pick-up, meeting Cason . . . . . I was going towards the front of the garage and when I looked back they were scufflling over a big 'S' wrench, and had that wrench in the air up over them, and both of them had hold of it. * * * Darwin had the knife in his hand half-open when he started towards Cason. Before he got to Cason he shut the knife up and put it in his pocket."
It was also shown that there were two previous encounters between appellant and the deceased, in one of which appellant threw or pushed the deceased against the bumper of a car; again, they were quarrelling, and looked like they were going to fight; and then the third fatal encounter, all of which occurred in less than thirty minutes.
We do not feel willing to say that there was no testimony here that raised an issue of self-defense upon the part of the deceased. We think the testimony raised such issue, and being thus convinced, we think the charge complained of was not in error.
Had Mr. Cason survived the difficulty and Mr. Darwin been the participant who met his death, then could it be said that Mr. *Page 214 Cason was not entitled under the facts to an issue of self-defense?
Cason was less powerful than Darwin, so appellant said; he had been worsted in one encounter with appellant; again another quarrel had arisen wherein appellant had exhibited a knife, so Cason said, and again Darwin came across the street to where Cason was and with a knife in his hand accosted Cason and said: "If you said you paid me, you are a damn liar. How do you like that?" Under such circumstances if Cason was upon trial for the killing of Darwin, we think the court would have been called upon to charge upon Cason's right of self-defense.
There should some weight at least be placed upon Darwin's conduct just before this last difficulty, and the trial court recognized such fact when he charged upon a provocation of the difficulty, and to that extent took away from appellant his perfect right of self-defense.
We think the testimony raises the issue of self-defense upon the part of the deceased, and therefore the State's motion is granted, the judgment of reversal is set aside, and the judgment is now affirmed.
HAWKINS, Presiding Judge, dissents.