Thomas v. State
| Decision Date | 14 June 1899 |
| Citation | 51 S.W. 1109 |
| Parties | THOMAS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, Bosque county; J. M. Hall, Judge.
Jim Thomas was convicted of murder in the second degree, and he appeals. Reversed.
Lockett & Kimball, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.
Appellant was convicted of murder in the second degree, and his punishment assessed at 14 years' confinement in the penitentiary.
In his motion for new trial appellant complains of the following portion of the court's charge: "You are instructed that if you believe, from the evidence, that the defendant sought a meeting with the deceased with intent to provoke a difficulty with deceased, and, if the deceased resented the provocation, if any, then the defendant intended to take life of the deceased, or do him serious bodily harm, then, in such case, defendant could not plead self-defense; but, if defendant did not have such intention when he and the deceased walked away by themselves, and if deceased made an assault, defendant had the right to defend himself, using such force only as reasonably appeared to him to be necessary for his protection." Appellant's objections to said charge are: (1) Because the right of self-defense cannot be abridged, unless the defendant intended to provoke a felonious difficulty; (2) because said charge assumes that defendant sought deceased to procure a difficulty. This charge is erroneous, and vague and indefinite in its expressions. It is not a violation of law to seek a party for the purpose of provoking a difficulty. The offense is provoking the difficulty. We have held that a party can arm himself, and go to where a person is, but, after reaching there, if he did not provoke the difficulty, or do some act or make some statement reasonably calculated to provoke the difficulty, he could not be convicted of provoking the difficulty. In other words, if the defendant sought deceased for the purpose of having a friendly talk, and in the course of the conversation, in which he was endeavoring to settle the previous trouble, a difficulty arises between defendant and deceased, the mere fact that he sought deceased for the purpose of settling the previous trouble would not be evidence of the fact that he provoked the difficulty. On the other hand, if appellant sought deceased for the purpose of having a friendly talk, and then and there provoked the difficulty, the law of provoking the difficulty would...
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