Drake v. State

• Decision Date: 11 May 1904
• Parties: DRAKE v. STATE.
• Court: Texas Court of Criminal Appeals

80 S.W. 1005

DRAKE v. STATE.

Court of Criminal Appeals of Texas.

May 11, 1904.

Appeal from District Court, Eastland County; J. H. Calhoun, Judge.

Uell Drake was convicted of assault with intent to murder, and appeals. Reversed.

D. G. Hunt, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal. This is the second appeal. Drake v. State, 77 S. W. 7, 8 Tex. Ct. Rep. 645. The state's case, as contained in the former appeal, is substantially the same as the facts in this record. In the former trial, appellant testified, but he did not testify in the present trial.

Appellant excepted to the court charging on provoking the difficulty, on the ground that there was no evidence raising this issue, and he also excepted to the character of the court's charge on provoking the difficulty. So much of the court's charge on the subject as is necessary to show the objection urged is substantially as follows: "If you believe from the evidence that defendant, armed with a deadly weapon, willfully provoked the difficulty, if any occurred, with Oscar Dennis, with intent to take his life," etc., "and that during the progress of the difficulty defendant inflicted a wound upon said Dennis with said weapon, with intent to take his life, he cannot justify on the ground of self-defense, and you should find him guilty of an assault with intent to murder," etc. Then following this is a general charge on a wrongful or blamable act, which we presume the court intended the jury to use in determining the act of provocation. Said charge is 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, the right of self-defense would be complete, though the act be not blameless. 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 he should take life or do serious bodily harm, then the law imputes to him his own wrong and its consequences, to the extent that they may and should be considered in determining the grade of his offense, if any, which but for such acts would never have been occasioned. How far and to what extent he will be excused or excusable, in law, depends upon the nature and character of the act he was committing, if any, which produced the necessity that he should defend himself. When his own original act was in violation of law, then the law takes that fact into consideration in limiting his right of defense and resistance while in the perpetration of such unlawful act." This whole definition, found in some of the forms, is argumentative in character, but defines nothing, and, without some practical definition of a cause of provocation, is calculated to confuse and mislead. It has been repeatedly held that in no cause should a judge give a charge on provoking the difficulty in the absence of facts raising that issue, because the effect of such a charge is to destroy or limit the right of self-defense. Morgan v. State, 34 Tex. Cr. R. 222, 29 S. W. 1092; McCandless v. State, 42 Tex. Cr. R. 58, 57 S....