Carter v. State

• Decision Date: 22 April 1896
• Citation: 35 S.W. 378
• Parties: CARTER v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W. 378

CARTER v.STATE.

Court of Criminal Appeals of Texas.

April 22, 1896.

Appeal from district court, Falls county; S. R. Scott, Judge.

Ned Carter was convicted of manslaughter, and appeals.Reversed.

Rice & Bartlett, for appellant.Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of manslaughter, and his punishment assessed at imprisonment in the penitentiary for five years, and prosecutes this appeal.

Appellant moved the court that the cause be continued for the want of the testimony of Mat Williams, John Breeland, and Henry Lokelton.The affidavit in support of this motion, viewed in the light of the statement of facts in this record, shows that very important facts could be proved by the absent witnesses.There is no question about the diligence used to secure the attendance of the witnesses.The motion being overruled, the appellant excepted thereto, and reserved a bill of exceptions.Attached to the bill of exceptions is the reason of the court for overruling said motion, to wit, "The court refused to grant the application on the ground that there were other eyewitnesses to the difficulty in attendance upon the court."This was the first application for a continuance.Appellant was entitled to any number of witnesses within the bounds of reason.This precise question arose in Clark v. State(Tex. Cr. App.)33 S. W. 224, and it was there held that the continuance should have been granted.

There are several theories presented by the testimony in this case: First.That the appellant, with a deadly weapon—a knife—in his hand, open, by words and insulting language, provoked the difficulty with the view of slaying his adversary.Upon this theory, the court should have instructed the jury that if they believed from the testimony that the defendant, with a deadly weapon, ready for immediate use, provoked the difficulty, with the purpose of obtaining a pretext for slaying the deceased, he would be guilty of murder, and, we think, of murder in the first degree.That, however, should have been left to the jury.Second Theory.That the defendant entered into a mutual combat, —a simple assault and battery,—and, being assaulted by his adversary and others with chairs, he resorted to a deadly weapon.The court should have instructed the jury upon this theory, to wit, a mutual combat without intending to do serious bodily injury, and resorting to deadly weapons when more force was used by his adversary than he originally contemplated.The result of such a state of facts would be manslaughter.The theory presented by the testimony for the defense, by quite a number of witnesses, was that the appellant and one Miesch got into a wordy altercation about being treated to beer; that Miesch struck the appellant, who returned the blow, whereupon Miesch and his friends resorted to chairs, and had struck, and were in the act of repeating the blows, when the defendant inflicted the fatal wound with a knife.This being so, it was a clear case of self-defense.

The court instructed the jury in regard to provoking the difficulty as follows: "A party may have a perfect right of self-defense, though he may not be entirely free from blame or wrong in the transaction.If the blamable or wrongful act was not intended to produce the occasion, nor an act which was, under the circumstances, reasonably calculated to produce the occasion or provoke the difficulty, then the right of self-defense would be complete, though the act be not blameless.But you are further instructed that a party cannot avail himself of a necessity which he has knowingly and willingly brought upon himself.Whenever a party, by his own wrongful act, produces a condition of things wherein it becomes necessary for his safety that...