Mason v. State

• Decision Date: 09 March 1921
• Docket Number: (No. 5699.)
• Citation: 228 S.W. 952
• Parties: MASON v. STATE.
• Court: Texas Court of Criminal Appeals

228 S.W. 952

MASON v. STATE.

(No. 5699.)

Court of Criminal Appeals of Texas.

March 9, 1921.

Appeal from District Court, Floyd County; R. C. Joiner, Judge.

Grady Mason was convicted of manslaughter, and he appeals. Reversed and remanded.

Frank Ford, B. B. Greenwood, of Breckenridge, Kenneth Bain, of Floydada, and Kinder & Russell and A. B. Martin, all of Plainview, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

HAWKINS, J.

Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of three years.

This is the second appeal in this case. The case on the other appeal is reported in 85 Tex. Cr. R. 254, 211 S. W. 593. The facts are sufficiently stated in that opinion, and it will be unnecessary to repeat them here.

Many questions are raised by appellant which we will not discuss at length. We think there is no merit in the bills which challenge the correctness of the trial court's action in admitting the dying declaration in evidence, and the testimony of Dr. Hopkins as to the character of the instrument with which the wound was inflicted, and as to his opinion as to the cause of death; nor as to the testimony of the wife of deceased as to the location of the wound on deceased's head with reference to a torn place in the cap.

The trial court charged on provoking the difficulty, and appellant urges (1) that the court was in error in charging on that issue at all, claiming it was not raised by the evidence, and (2) that if mistaken as to that contention, the charge of the court upon that issue does not properly state the law of provoking a difficulty.

We do not agree with appellant in his first contention. An examination of the facts show the issue was fairly raised, and the court therefore properly undertook to charge the law applicable to it. The charge upon that subject, and all of the charge presenting that issue, is copied here:

"(10) You are further instructed that as a part of the law of self-defense, that if a person, by his own wrongful acts, brings about the necessity of taking the life of another to prevent himself being killed, or being seriously injured, he cannot claim that such killing was in his own necessary self-defense.

"(11) If an accused, by words or acts, or both, provoke a difficulty or combat for the purpose of thereby committing a battery on another, or inflicting violence upon such other person, other than to kill him or do him serious bodily injury, and the accused does commit such battery or does violence to such other person, and death should result therefrom, then the accused would be guilty of manslaughter even though it should then be necessary to kill the deceased in his own self-defense.

"(12) You are instructed that if you believe beyond a reasonable doubt that the defendant provoked the difficulty that resulted in the death of the deceased, or by his own wrongful acts, or conduct, produced the necessity for taking the life of deceased, but at said time had no intention to kill deceased, or to inflict upon him some serious bodily harm, the defendant struck the deceased on the head with a piece of windmill sucker rod, and that such sucker rod was, from the manner and mode of its use, such an instrument as was calculated or likely to produce death or serious bodily injury, and that such death of deceased was caused by such blow inflicted by the defendant, and there was no great neglect or manifestly improper treatment of deceased, then the defendant would be guilty of manslaughter, even though such killing was done in his own self-defense. But if there was great neglect or manifestly improper treatment of the deceased, then the defendant would be guilty of no higher offense than that of aggravated assault."

The twelfth paragraph of the court's charge was excepted to by appellant for many reasons, but the following are set out in full, as they are the ones this court will discuss later on:

"Said paragraph 12 is further erroneous in that the jury's consideration is not limited to such words, acts, and conduct of the defendant as might in reason and did in fact provoke the difficulty, the jury being left to select any fact in evidence that in their judgment was wrongful, even though such fact or facts would not in law be sufficient to cut off the defendant's right of self-defense."

And further:

"Said paragraph 12 is further erroneous in not charging the converse of the state's theory, to wit, that if the defendant did not provoke the difficulty, then he is entitled to his perfect right of self-defense."

The only excuse this court can urge for discussing the question of provoking the difficulty at any length is the continued number of cases that reach this court for review upon that subject, and we discuss the matter in the hope that we may eventually call the attention of the trial judges over the state to the importance of exercising care in the preparation of charges on this subject.

The twelfth paragraph of the charge copied above tells the jury in effect:

"That if defendant provoked the difficulty that resulted in the death of the deceased, or by his own wrongful acts, or conduct, produced the necessity for taking the life of deceased, * * * then the defendant would be guilty of manslaughter, even though such killing was done in his own self-defense."

The foregoing is not the law. 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 intented 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. The foregoing charge of the court is subject to the criticism directed at it by counsel for appellant, in that it gives the jury no measure or guide with reference to what wrongful acts or conduct would amount to provoking the difficulty, but, as suggested by counsel in his exception to that charge, leaves the jury to grope through the record with freedom to pick out any act which they might in their judgment believe to be wrongful or blamable upon the part of appellant, which resulted in bringing on or provoking the difficulty. An accused may seek a party with the intent to provoke a difficulty, but he does not forfeit his right of self-defense unless after he has found his adversary he then by words or acts, or both, did provoke it. Indeed, he must go further than that even before his right of self-defense can be so limited. He must not only have intended to provoke his adversary to make an attack in order that he might gain the vantage ground of acting apparently on the defensive, but he must do something or say something, either or both, with the intention and purpose of causing his adversary to make the attack, and then the things he does or says must be reasonably calculated to effect that object. In other words, they must be reasonably calculated to make his adversary begin the attack, the very thing he has designed from the first, in order that he may then proceed with his original unlawful purpose towards his adversary with the law apparently on his side.

To state the matter in another way: Before a party's right of self-defense can be impaired or limited by the issue of provoking the difficulty, three things must concur: (1) He must have intended to provoke his adversary to make the first overt act; (2) he must do or say something, one or both, with the intention of bringing about that result; and (3) the things that he does or says must be reassonably...