Renow v. State

• Decision Date: 07 February 1906
• Citation: 92 S.W. 801
• Parties: RENOW v. STATE.
• Court: Texas Court of Criminal Appeals

92 S.W. 801

RENOW v. STATE.

Court of Criminal Appeals of Texas.

February 7, 1906.

Appeal from District Court, Denton County; D. E. Barrett, Judge.

Lige Renow was convicted of murder, and he appeals. Reversed.

J. W. Sullivan and Emory C. Smith, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

This conviction is for murder in the second degree, with 13 years in the penitentiary fixed as the punishment; hence this appeal.

The charge on provoking the difficulty is extensively criticized. There is no direct challenge of it on the ground that the testimony was not sufficient to raise the question of provoking the difficulty. However, we believe that the exceptions numerously raised to said charge involve this question incidentally or indirectly, and, especially as the case is to be reversed, we will discuss the legality of said charge in the face of the testimony as disclosed by this record. We would remark here that the question as to when a court is authorized to charge on provoking the difficulty has been so often and so thoroughly discussed that we only deem it necessary to refer to some of the decisions as to the propriety or authority of the court to give a charge on that subject. A court is only authorized to charge on provoking the difficulty, when it is able to lay its hand upon some fact or facts testified to by a witness or witnesses which shows, or tends to show, that defendant, before or at the time of the difficulty, did some act or used some language, or both, calculated to provoke a difficulty, under the circumstances and with the intent to provoke such difficulty; and that on the use of such language or conduct, or both, he was attacked or assaulted by the prosecutor, and then, having thus produced the occasion, he, in turn, assaulted and killed deceased. In such case his right of self-defense is cut off. Cart-wright v. State, 14 Tex. App. 502; Abram v. State, 36 Tex. Cr. R. 46, 35 S. W. 389; Bearden v. State (Tex. Cr. App.) 79 S. W. 37; Dent v. State (Tex. Cr. App.) 79 S. W. 525. And see McCandless v. State, 42 Tex. Cr. R. 58, 57 S. W. 672, where this question is thoroughly discussed in the light of the authorities and the character of charge which should be given, is outlined.

Is there in the record as here presented sufficient testimony to have authorized the court to give a charge on provoking the difficulty? It is not necessary here to discuss the testimony of the defense on this subject, except to remark that said testimony negatives the idea that appellant or his brother, Mose, provoked the difficulty. If there is any such testimony, it must come from the state's witnesses. These, in effect, show that Mose Renow, appellant's brother, who was also present and a party to the difficulty, came to the house where deceased lived early in the morning, about daylight. His mission was to get his horse, which Dolphus Isom was breaking. The testimony of the state is not clear as to whether appellant came there with Mose, but would rather indicate that he came afterwards. The defendant's testimony makes it clear that he did not come with Mose, but after he did. Mose came the evening before to get his horse from Dolphus, who had him for two or three weeks to break. Dolphus declined to give the horse up at that time, stating he had just gotten him so he could ride him, and he would not surrender the animal unless he got $2.50. Mose came early the next morning, before the Isoms got up, went into the lot and got the horse, put a hitch rein or halter on the horse, and led him out of the lot. He was discovered by the Isoms about this time, and they came out, and in the altercation over the possession of the animal the animal broke loose and ran back to the lot gate, and the Isoms opened the gate and let him in. About this time, as we gather, appellant (Lige Renow), came up, and said to Mose, if he (Mose) would stick to him, they would take the horse. Mose made no reply. An altercation ensued about the possession of the animal, in which the parties cursed each other. Lige was told that he must not curse there, and he remarked that he would curse anywhere. On request, Dolphus Isom gave Mose his halter, and the Renows appear to have started towards their home, around the horse and cow lot. Shack Isom followed appellant, who was ahead, and Mose and Dolphus came on afterwards, and also Mrs. Isom following. It appears that, when they got near to the corner of the cow lot, Shack said he believed appellant had a pistol, and proposed to search him. Dolphus came up, held his hands, and Shack searched appellant, feeling of his pockets, and stated he did not have a gun on him. They turned appellant loose, and he backed off, opening his knife, and said they could not do that again; and further said, "Come on down here and we will settle it." After he opened the knife, Shack picked up a stick, about three feet long and an inch or two in diameter (used to keep the calves off when milking), and followed, evidently gaining on appellant, who finally turned around, facing Shack, who, at this juncture, struck him with the stick. According to the testimony, appellant then fired at Shack, hitting him, and then shot deceased (Dolphus), inflicting a mortal wound on him. The state's testimony shows by Shack Isom that appellant picked up the pistol from the ground. Appellant's testimony shows that he had the pistol on all the time while the search was being made, but it was in the waistband of his pants, and not in his pockets, and that he got it out of his pants, and did not take it up from the ground. Appellant's testimony also shows in this connection that he was on his way home, going away from the parties at the time, and they were pursuing him; that they caught him first and searched him;...