Carlile v. State

• Citation: 255 S.W. 990
• Decision Date: 21 November 1923
• Docket Number: (No. 7268.)
• Parties: CARLILE v. STATE.
• Court: Texas Court of Criminal Appeals

255 S.W. 990

CARLILE v. STATE.

(No. 7268.)

Court of Criminal Appeals of Texas.

November 21, 1923.

Appeal from District Court, Cass County; R. T. Wilkinson, Judge.

Stonewall Carlile was convicted of murder, and he appeals. Reversed.

Beavers & Mansell, of Winnsboro, and C. C. Hines, of Linden, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of 10 years.

A recital of most of the salient facts is contained in the opinion on the former appeal. See 90 Tex. Cr. R. 1, 232 S. W. 822.

Lance and the appellant were enemies. They lived in the country, but on the occasion of the homicide were in the county seat. Lance, after getting his shotgun from Copes' jewelry store, went into the alley separating the store from the Howe building. While in that alley he was fired upon by appellant, who, with his wife and son, was across the street about 100 feet distant at a point near Ellington's store. The shot missed its mark, and Lance went into Copes' store, and a short time thereafter, with his gun in his hand, he walked towards the point at which appellant was standing, this being the same point from which the shot was fired. On observing him, appellant went into Ellington's store, and upon the arrival of the deceased at a point on the sidewalk immediately in front of that store he was shot and killed by the appellant.

Complaint is made of that part of the charge of the court which submitted to the jury the theory of provoking the difficulty as a reason for rejecting appellant's plea of self-defense, or of limiting it to imperfect self-defense. There was evidence from which the jury might have decided that when appellant fired the first shot deceased was in the act of shooting the appellant from the alley in which he stood; at least, that the actions of the deceased at that time were such as to justify appellant in a reasonable apprehension that he was about to be shot by the deceased. The evidence also suggests the theory that at the time he fired the first shot he was in no danger from the deceased, either real or apparent. The evidence presents the theory that after the first shot had been fired appellant abandoned the conflict, and that the deceased, with hostile intent, sought the appellant; that, observing the approach of the deceased, appellant retreated into Ellington's store, and, as deceased was about to follow him into that store with the gun ready in his hands, appellant fired the fatal shot under a reasonable apprehension of death at the hands of the deceased. The theory also arises that the deceased at the time of the firing of the fatal shot was not attempting to pursue the appellant, but was in the act of passing the store in which appellant was standing, and that his conduct justified no other inference on appellant's part.

The theory presented by the charge on provoking the difficulty was in substance that, in firing at the deceased while near Copes' store, appellant provoked the deceased to make the subsequent attack in which he lost his life. The record reveals no evidence making doubtful the intent of the appellant to kill the deceased when the first shot was fired. An effort was made to justify the act on the ground that the deceased was armed at the time, and was about to shoot the appellant. Having reference to that time, the question of fact was, Who began the difficulty? and not, Who provoked it? The distinction has often been noted. See Sanchez v. State, 69 Tex. Cr. R. 134, 153 S. W. 1133.

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." 13 Ruling Case Law, p. 833, § 137; Roberson v. State, 83 Tex. Cr. R. 244, 203 S. W. 349, and cases cited therein.

If the state's theory that the appellant, at a time when he was neither attacked nor threatened with an assault, but inspired by malice, fired at the deceased in an effort to kill him, was true, he began the difficulty. If the difficulty thus begun continued and culminated in the killing of the deceased, the law of provoking the difficulty would have no place. If the appellant fired the first shot with malice and without provocation, and afterwards, with the knowledge of deceased, abandoned the conflict, and was later, without provocation, attacked by the deceased under conditions making it reasonably apparent to the appellant that the deceased was about to kill him, the perfect right of self-defense would not be forfeited by reason of the previous encounter. Cox v. State, 57 Tex. Cr. R. 427, 123 S. W. 696, 136 Am. St. Rep. 992, 26 L. R. A. (N. S.) 621; 13 Ruling Case Law, p. 834, § 138, note 5, and Texas cases there collated; also page 802, § 137, notes 7 and 8.

On the former appeal, while this case was reversed upon other grounds, it was stated that the facts did not warrant a charge on the law provoking the difficulty. In substance, the charge given in the present trial is not different from that on the former trial, as it relates to the subject of provoking the difficulty both with intent to kill and to do lesser harm and to bringing on the occasion by the wrongful act of the accused. In the opinion on the former appeal, there is an intimation that the theory of imperfect self-defense might arise from the evidence in the case. On the further reflection, it is believed that such is not the case. The so-called law of imperfect self-defense is difficult to define. It seems blended with that phase of the law...