Carson v. State

• Decision Date: 19 May 1921
• Docket Number: (No. 6139.)
• Citation: 230 S.W. 997
• Parties: CARSON v. STATE.
• Court: Texas Court of Criminal Appeals

230 S.W. 997

CARSON v. STATE.

(No. 6139.)

Court of Criminal Appeals of Texas.

May 19, 1921.

Appeal from District Court, Archer County; H. F. Weldon, Judge.

Roy Carson was convicted of aggravated assault, and he appeals. Reversed and remanded.

Martin & Oneal, of Wichita Falls, for appellant.

C. M. Cureton, Atty. Gen., and Walace Hawkins, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for aggravated assault; punishment fixed at a fine of $250 and confinement of 30 days in jail.

The appellant, Roy Carson, and his brother, Ray Carson, were young men around 20 years of age. Averill, the injured party, was a man something over 30 years of age. The appellant shot Averill and wounded him. The shots were fired while the appellant, his brother, Ray, and Averill were on the street in front of the place of business of the appellant. Averill was a man of much greater strength than either the appellant or his brother, and bore the reputation of a pugnacious individual.

Some months before, a business transaction had taken place in which Averill admitted his indebtedness of garage charges to the appellant and his brother, and later, when Ray Carson in company with his mother, stopped at the place at which Averill was working for the purpose of collecting the account, Averill made an assault upon Ray Carson, in which Ray was beaten with the fists of his assailant.

Immediately before the difficulty with the appellant, Averill chased Ray Carson from some point on the street to the garage door and kicked him as he went in, using towards him harsh language. This took place in the presence of the appellant. While Averill was chasing Ray Carson, the latter hollered a number of times to his brother for help. Hearing this appeal, appellant got his pistol, which was in the garage. This happened just a few moments before Ray Carson entered the garage in his flight from Averill.

Describing this, Averill said:

"He (Ray Carson) was going towards the garage. He hesitated and I started after him, hollered to him to stop and chased him, and as he got on the porch I kicked him. He hollered to his brother and told his brother to get the gun. I turned and walked out in the street, and a lady ran across the street and tried to keep him from getting his gun. They were in the garage possibly 10 or 15 seconds. They came out; the appellant with an axle in his hand. He did not come outside the door until he set it down and pulled the gun out of his pocket. He came out, and his brother, the one I was after, came out in front of him. The one with the gun says: `Now, hit him if you have got any nerve or guts.' In 4 or 5 seconds I struck at him, and continued to strike at him, and the boy with the gun shot at me. The boy I was fighting turned and started off, and I took four or five steps when the man shot me in the back. I turned around and started after him and he ran. There was a brick lying there, and I picked that up and threw it at the man who had the gun. About that time two men drove up, and I jumped on the fender of the car and pulled a gun out from under the man's arm and stepped off the running board. As I did so one of the Carson boys was just coming out of the garage, and evidently had seen what I was doing and was running toward the garage, and just as he ran I pulled the trigger, but it was a hammerless gun and on the safety. I started after him, and the man in the car told me it wasn't loaded."

Some of the facts testified to on behalf of the state are controverted, but treating them as having been found to be true by the jury, the legal question is presented whether, in connection with the charge on self-defense, the court was justified in instructing the jury in the following language:

"If you find and believe from the evidence that the defendant, Roy Carson, voluntarily engaged in combat with J. D. Averill at the time of the shooting, knowing at said time that said combat might result in death or serious bodily injury to one of the contestants, then and in that event the defendant would not have the right to shoot the said J. D. Averill in self-defense."

The issue of mutual combat as a limitation upon the right of self-defense does not arise alone from the fact that the parties to the affray are mutually engaged in it. The issue arises out of an antecedent agreement to fight. The agreement must exist. Of course, it may be proved by direct testimony or inferred from circumstances. As said in Reese v. State, 49 Tex. Cr. R. 243, 91 S. W. 584:

"Nor is there any mutual combat in it because two parties...