Smith v. State

• Decision Date: 03 May 1905
• Citation: 87 S.W. 151
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

87 S.W. 151

SMITH v.STATE.

Court of Criminal Appeals of Texas.

May 3, 1905.

Appeal from District Court, Falls County; Sam R. Scott, Judge.

Will Smith was convicted of assault with intent to murder, and appeals.Reversed.

N. J. Lewellyn, for appellant.Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of assault with intent to murder, the punishment being fixed at five years' confinement in the penitentiary.

The only question we deem necessary to pass upon is that ground of appellant's motion wherein he complains that the court erred in the charge on provoking the difficulty, which is as follows: "If you believe that the defendant committed the assault as a means of defense, believing at the time he did so, if he did do so, that he was in danger of losing his life or of serious bodily injury at the hands of said Will Kelly, then you will acquit the defendant, unless you further believe from the evidence, beyond a reasonable doubt, that the defendant sought the meeting with the said Kelly for the purpose of provoking a difficulty with said Will Kelly, with intent to take the life of said Will Kelly, or to do him some serious bodily injury as might probably end in the death of Will Kelly; and, if you so believe from the evidence beyond a reasonable doubt, then you are instructed that, if the defendant sought such meeting for the said purpose and with such intent, the defendant would not be permitted to justify on the ground of self-defense, even though he should thereafter have been compelled to act in his own self-defense, but, if he had no such purpose and intention in seeking to meet the said Will Kelly, then his right of self-defense would not be forfeited or impaired, and he could stand his ground and defend himself by the use of such means of defense as the facts and circumstances indicated to be necessary to protect himself from danger, or what reasonably appeared to him at the time to be danger."By this charge the court deprived appellant of the right of self-defense if he sought the meeting with the said Kelly for the purpose of provoking a difficulty.Appellant may have sought the meeting for the purpose of provoking a difficulty, but this would not per se authorize a charge on provoking the difficulty.He must do some act —some overt act—or make some statement indicating a purpose to arouse anger and provoke resentment on the part of the injured party, which act or conduct did provoke it, before his...