Cline v. State
| Decision Date | 01 December 1894 |
| Parties | CLINE v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Gonzales county; T. H. Spooner, Judge.
Dan Cline was convicted of murder in the second degree, and appeals. Reversed.
Geo. Burgess, for appellant. R. L. Henry, for the State.
Appellant was convicted of murder in the second degree, his punishment being assessed at five years in the penitentiary. The evidence for the state makes out a case of murder in the first degree; that for the defendant, a case of self-defense, pure and simple, leaving no middle ground for manslaughter. Under the state's theory, if the defendant produced the occasion for the killing, it was by reason of lying in wait, and a shot at the deceased and his brother. Under said theory, defendant was attempting to shoot before deceased or his brother did anything. He was the aggressor in every particular. He did not provoke the deceased or his brother to do anything as an excuse for his action in the premises. Hence the doctrine of provoking the difficulty or producing the occasion for the purpose of killing his adversary does not apply. The court, therefore, erred in submitting this principle of the law in his charge. If the defendant's theory of this case be true, the deceased and his brother were in the very act of committing murder upon them, and the provisions of article 572 were not applicable. This was a case of attempt at murder upon the part of deceased and his brother, on the one hand, or an unprovoked murder by defendant and his two brothers, upon the other hand. If of the first, the provisions of articles 570 and 571 of the Code should have been submitted to the jury, and not those of article 572, be cause defendant did not, under his theory of the case, kill deceased to prevent an unlawful or violent attack upon himself other than an attempt to murder, and was not bound to resort to all other means to prevent the threatened danger. He acted for the purpose of preventing murder, and nothing less, if his theory be true. That it was true was a question for the jury. The remaining questions are not of sufficient importance, it is thought, to require discussion. Judgment reversed, and cause remanded.
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