Hammonds v. State

• Decision Date: 24 October 1917
• Docket Number: (No. 4537.)
• Citation: 198 S.W. 944
• Parties: HAMMONDS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 944

198 S.W. 944

HAMMONDS v.STATE.

(No. 4537.)

Court of Criminal Appeals of Texas.

October 24, 1917.

Dissenting Opinion December 5, 1917.

Appeal from District Court, Bowie County; H. F. O'Neal, Judge.

Mack Hammonds was convicted of murder, and he appeals.Reversed and remanded.

N. L. Dalby, Joe Hughes, and J. Q. Mahaffey, all of Texarkana, for appellant.E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The former appeal is reported in 77 Tex. Cr. R. 116, 177 S. W. 493.It is deemed unnecessary to make a statement of the facts in the disposition of this appeal.While the evidence is not altogether as shown by the previous appeal, yet such evidence may be treated as being substantially the same.

The court charged the jury that, if they should find from the evidence that defendant and Joe Hokes armed themselves and pursued deceased with the intention of taking his life, or inflicting upon him serious bodily injury, he could not justify on the ground of self-defense.Exceptions were reserved to this charge; they are correct.It takes more than is stated by the court in the charge to forfeit the right of self-defense.Appellant and Hokes may have done as stated in the charge, and had the intent and purpose to kill, or inflict serious bodily injury, yet if, without some act done by them, or words spoken, or both such words and acts they provoked deceased into a difficulty, or give evidence by word or act of carrying out their purpose, self-defense would still remain.An accused party does not forfeit his right of self-defense by simply having an intent to kill or to do serious bodily injury.There must be some act done or word spoken indicating his purpose, and in addition he must execute that purpose, or provoke the other party to do something that he may execute it.It is not every act done by an accused which forfeits his right of self-defense.If the act done or word spoken is to provoke the difficulty with the ulterior view of killing, or inflicting serious bodily injury, and he does the act, or utters the provoking words, the killing might be murder.If for a less purpose than to kill or inflict serious injury, the law of imperfect self-defense would arise, and the culpability under such circumstances would be of less magnitude than murder.It is therefore necessary, as a prerequisite to forfeiting the right of self-defense, that the accused must do or say something as to his purpose which would and does bring on the difficulty.The charge is erroneous from any viewpoint.

The court also charged the jury that, if they should believe that defendant sought the meeting with deceased for the purpose of slaying him, or inflicting upon him serious bodily injury, and, having found him, did some act or used some language, or did both, with intent to produce the occasion to bring on the difficulty, and that the same, under the circumstances, was or were reasonably calculated to provoke a difficulty, and on such account deceased attacked the defendant, or Joe Hokes, or both of them, and the defendant, or Joe Hokes, while acting together at that time as principals, as heretofore defined in the charge, shot and killed deceased in pursuance of their original design, then defendant cannot justify on the ground of self-defense, for such killing would be murder.Various exceptions were urged, and special charges requested and refused.These were timely presented.This charge falls short of the law, and did not submit the converse of the proposition announced by the court, to wit: If appellant and Hokes followed deceased, not for the purpose of killing him, but inflicting upon him injury less than such as would cause murder, then the question of imperfect self-defense arose, and the killing might be less than murder.It would present the question of manslaughter.Having charged on the doctrine of provoking a difficulty with the ulterior purpose of killing, or inflicting serious bodily injury, without the converse of the proposition that, if the purpose was less than to kill or inflict serious bodily injury, then imperfect self-defense would be in the case, an appropriate charge should have been given presenting that theory.The question is suggested by the testimony, and should have been covered by the charge.

The theory of appellant...