Jones v. State, 23246.

• Decision Date: 12 December 1945
• Docket Number: No. 23246.,23246.
• Citation: Jones v. State, 192 S.W.2d 155, 149 Tex.Cr.R. 119 (Tex. Crim. App. 1945)
• Parties: JONES v. STATE.
• Court: Texas Court of Criminal Appeals

192 S.W.2d 155

JONES v. STATE.

No. 23246.

Court of Criminal Appeals of Texas.

December 12, 1945.

Rehearing Granted January 30, 1946.

Commissioners' Decision.

Appeal from District Court, Seventy-Fifth District, Hardin County; Clyde E. Smith, Judge.

A. J. Jones was convicted of murder, and he appeals.

Reversed and remanded.

W. J. Baldwin, of Beaumont, and H. A. Coe, of Kountze, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the state penitentiary for a period of ten years.

The State's evidence, briefly stated, shows that appellant and deceased were neighbors. Appellant lived on his own farm while the deceased, Alex C. Beadle, lived upon a 37-acre tract which his son-in-law, T. E. Clark, had acquired from J. H. McKinney, who had theretofore purchased it from appellant. It seems that the land was conveyed by Jones to McKinney and by McKinney to T. E. Clark by metes and bounds, but the dividing line running west and east between the respective farms had never been surveyed and definitely established. However, an old fence which had been constructed from east to west many years ago was still standing on the premises. It appears that after Clark had acquired the 37 acres from McKinney and after the deceased was placed in charge of it by his son-in-law, he (deceased), under his power of attorney, had a conference with appellant with a view of reaching an amicable adjustment of their differences relative to the division line. He suggested to appellant that they get a surveyor to survey the land according to course and distance and definitely establish the line, but appellant declined to agree thereto. Thereupon a suit was instituted against appellant and upon a hearing thereof the court appointed a surveyor to ascertain the location of the line, mark and establish it. The surveyor, in obedience to the order, went to the premises to carry out the instruction from the court but appellant would not permit him to do so. This matter was brought to the attention of the court and appellant was cited to appear in court and show cause why he should not be held in contempt. He did appear and agreed to permit the surveyor to make the survey which disclosed that there were approximately twelve acres of land beyond the old fence line that belonged to Clark. Appellant, on several occasions and to various parties, stated that he would kill anyone who interfered with the old fence. These threats were communicated to the deceased. Two days prior to the killing, the deceased was carrying posts to the recently surveyed line with a view of constructing a fence upon and along the same. He carried a shotgun with him, no doubt for his own protection. On the day of the killing, appellant, who was at work in his field, stopped his team and went hurriedly to his home. Soon thereafter the wife of the deceased heard a shot. She went to the place where she heard the report of a gun and found her husband lying dead near the old fence and appellant was plowing in his field. She left the body untouched and summoned neighbors and an officer to the scene of the killing. An examination of the body revealed that the deceased had been shot with buckshot.

Appellant's plea was self-defense and in support thereof he testified that a day or two prior to the killing, he noticed the deceased carrying posts onto his land; that he went there to see what the deceased was doing; that when he got a few steps from the deceased he (deceased) put his gun to his shoulder and said to him: "You s____ of a b____; don't you come a step further, or I will blow your guts out"; that on the day in question while he (appellant) was plowing in his field he went to the house to get a drink of water; that he saw a hawk fly out of his chicken yard; that after he had drunk some water he picked up his shotgun with a view of killing the hawk, but it flew further down the old fence line, and it appeared to him that it lit in a tree that he went in that direction looking for the hawk when he suddenly heard the deceased say: "Drop that gun"; that he looked in that direction but did not see anyone; that deceased spoke up again saying: "If you don't, I will shoot your God d____ brains out." At this time he noticed the deceased standing in some brush by the side of the fence, and had his gun to his shoulder pointing it at him; that he (appellant) then jumped behind a tree, and when he did so, the deceased came out of the brush with the gun to his shoulder, commanding him to drop his gun, whereupon he shot the deceased in self-defense. Appellant also proved a good reputation as a peaceable and law-abiding citizen.

Under the facts herein stated the court instructed the jury relative to the law of murder with and without malice, and in a separate paragraph gave an instruction on the law of self-defense without any limitation. This was followed by another paragraph in which he instructed the jury that if they believed from the evidence beyond a reasonable doubt that the defendant, prior to the 29th day of November, 1944, threatened to take the life of the deceased and that such threats, if any, were communicated to the deceased and that the defendant sought a meeting with the deceased for the purpose of slaying him, and having found him, did some act with the intent to produce an occasion to bring on the difficulty and that the same under the circumstances was reasonably calculated to provoke the difficulty and he, on such acts, killed the deceased in pursuance of his original design, then the defendant cannot justify his action on the ground of self-defense; but such killing would be murder. But, if the defendant had no such purpose in seeking the fatal meeting and did no act reasonably calculated to provoke the deceased to attack him, then his right of self-defense would not be forfeited, etc.

Appellant in due time objected to the foregoing charge on the ground that the issue of provoking the difficulty was not raised by any evidence; that it was an undue limitation of his right of self-defense; and for the further reason that he was entitled to an instruction on the law of imperfect right of self-defense. Whenever the facts or circumstances proven are such that the issue of provoking the difficulty is fairly raised, it is proper for the court to submit the same to the jury for their decision. We think that in the instant case the issue was raised because (a) the evidence shows previous ill feeling by appellant towards the deceased; (b) threats made by the appellant to kill the deceased as testified to by Mrs. Gore and which she communicated to the deceased; and (c) appellant's acts...