Morgan v. State

• Decision Date: 13 March 1895
• Citation: 29 S.W. 1092
• Parties: MORGAN v. STATE.
• Court: Texas Court of Criminal Appeals

29 S.W. 1092

MORGAN v.STATE.

Court of Criminal Appeals of Texas.

March 13, 1895.

Appeal from district court, Brown county; J. O. Woodward, Judge.

A. F. Morgan was convicted of manslaughter, and appeals.Reversed.

Jenkins & McCartney, for appellant.Mann Trice, for the State.

HENDERSON, J.

The appellant in this case was tried in the district court of Brown county on an indictment charging him with the murder of one J. C. Loughry.He was convicted of manslaughter, and his punishment assessed at two years' confinement in the penitentiary, and from the judgment and sentence in the casehe prosecutes this appeal.The appellant reserved a number of bills of exception, but the only one we regard as material is the court's charge on self-defense, in connection with the charge on provoking a difficulty by defendant.

The judge trying the case gave an admirable charge on murder of the first and second degree, and on manslaughter, and also on self-defense.But in a subsequent portion of the charge he takes up the subject of self-defense again, and instructed the jury 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, then the right of self-defense would be complete, though the act be not blameless.But you are further instructed that 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 the life or do serious bodily harm, then the law imputes to him his own wrong and its consequences to the extent that they may be 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 acthe 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."

In the first place, it does not occur to us that there was any occasion for a charge on the subject of provoking a difficulty by the defendant in this case.The record shows that the defendant and deceased, with others, were going from their home, in Comanche county, on a fishing excursion to the Colorado river, in Brown county.On their route they camped near the city of Brownwood, and the difficulty occurred at night in the camp.The deceased was lying down on a pallet, and defendant was cutting some meat to cook for supper.The son of deceased started to put a chunk on the fire.Defendant told him not to do it, as he did not want the fire to burn all night.The deceased told his son to put the chunk on if he wanted to, and to do as he d___d pleased about it.Defendant then said he did not know whether he would do as he d___d pleased about it or not, and deceased and defendant then began cursing each other.Deceased got up off his pallet and went to where defendant was, and cursed defendant, and told him he could kill him with his hand.Defendant then got a target gun out of the wagon, but could not unbreach the gun, and he put it...