Abram v. State

• Decision Date: 22 April 1896
• Citation: 35 S.W. 389
• Parties: ABRAM v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W. 389

ABRAM v. STATE.

Court of Criminal Appeals of Texas.

April 22, 1896.

Appeal from district court, Freestone county, Rufus Hardy, Judge.

Pink Abram was convicted of manslaughter, and appeals. Reversed.

Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of manslaughter, and given two years in the penitentiary, and prosecutes this appeal. The court submitted to the jury the following charge: "No one who voluntarily brings on an affray, in which he intends to wreak his malice, can avail himself of the plea of self-defense, even though his own life is endangered in the affray. If the slayer provoked the contest which resulted in the killing of the deceased, he is guilty of manslaughter, although he may have done the act of killing in order to save his own life." To the giving of this charge the appellant by his counsel excepted at the time.

The first question presented is whether the testimony required such a charge. The witness Manning swears: "That Rasbery Abram [deceased], Pink Abram [defendant], Mandy Burns, Barbary Thomas, and witness had started from Mandy Burns' house to go to a festival. Pat Wauls and Pink Abram were behind, and there was hallooing and cursing, like boys will do on Christmas times. Deceased said to the defendant that he must dry up, and go off, or that he would make him. Defendant said, `Make me.' They cursed each other. Defendant said that he would cut the deceased's heart out. Then I heard the deceased say that `You have cut me, and I am going to kill you.' Deceased then knocked and kicked the defendant down three times. The deceased was on top of the defendant, and I heard defendant make a noise like a hog that had been stuck. I told the deceased to get off of Pinkey; that, `You fool, you are killing Pinkey.' I then pulled deceased off of Pinkey. Deceased said that he was a dead man, walked off a few feet, and fell in the road. I called some one to come to me. Chance Cannon came, and I left him with deceased, while I went to the festival, and Bob Mims and Floyd Senter returned with me to the scene of the killing." These are the facts immediately attending the homicide.

Quite a number of witnesses were introduced for the purpose of proving that the witness Manning had frequently stated that he did not know that the deceased was cut at all until after he pulled him off of the defendant. This testimony could serve but one purpose, and that is to impeach Manning. It was not evidence of what occurred at the time.

Under the facts stated by Manning, was the doctrine of provoking the difficulty involved in this case? It was not. This doctrine applies in cases in which the accused inflicts the mortal blow to save his life or prevent serious bodily injury. In this case he was the aggressor, and inflicted the wound before his life or body was endangered at all. The testimony of this witness is to the effect that, when the deceased told him he must dry up, or go off, the defendant said, "Make me." After cursing one another, the defendant said that he would cut the deceased's heart out, acting at once by inflicting the mortal wound upon the deceased with a knife. The doctrine of provoking the difficulty is in the nature of an estoppel. The defendant introduces evidence tending to show that he acted in self-defense. The state replies, "You are estopped from making such a plea, because you produced the occasion or provoked the difficulty with the view of obtaining a predicate to slay your adversary, or to inflict upon him serious bodily injury." The state never insists upon this principle of law, except in cases in which the mortal wound, or the assault and battery, as the case may be, is met by the plea of self-defense. Then the state can rely upon this doctrine to deprive the defendant of such a right. In this case the defendant was in no danger when he inflicted the mortal wound. The first violence used was by him, and that with a knife....