Flewellen v. State

I am unable to conclude that the facts of this case authorized a submission of the law of provoking the difficulty in connection with that of self-defense; nor am I satisfied that the issue of perfect self-defense was raised. The State's evidence points to a homicide without justification or excuse. From its viewpoint there was no difficulty between the deceased and the appellant, but the appellant pursued and shot deceased while the latter was engaged in no act except an effort to escape. From the appellant's evidence the inference to be drawn is that his pursuit of the deceased was incidental to his efforts and desire to talk with the woman who was the companion of the deceased. Appellant's conduct and manner in undertaking to obtain this interview was wrongful and doubtless reasonably calculated to cause the deceased to attack him, or at least to make a demonstration to resist appellant's advances. In fact of such a character was his conduct that I am of opinion that if it be true, as he claims, that the deceased did attack him or make a demonstration to do so, that appellant was not possessed of the right of self-defense, but that his right to defend was modified by his previous wrongful conduct to a degree that, *Page 582

viewed in its most favorable light, the homicide would be manslaughter See Reed v. State, 11 Texas Crim. App., 509, and other cases cited in Branch's Crim. Law, sec. 463. Though in the wrong it does not follow that appellant would forfeit all right to defend his life should his conduct bring about an assault upon deceased, unless the appellant, having formed the intent to kill or seriously injure deceased, provoked the attack that he might have occasion to effect this purpose. See Jones v. State, 17 Texas Crim. App., 611; Thumm v. State, 24 Texas Crim. App., 667; Branch's Crim. Law, sec. 464, and cases cited. In other words, the intent to kill or seriously harm his adversary must be antecedent to the provocation in order to deprive one of all right to defend against an assault provoked by him, and then only is such right lost when the assault is provoked with intent to carry into effect the unlawful purpose. In this instance I am impressed with the view that appellant did not know the identity of Mrs. Fehrenkamp's companion; that his conduct leading up to the homicide was not induced by a desire and intent to kill deceased, but by an intent, in all events, to obtain possession of the woman who was the companion of deceased at the time. I, therefore, think that the trial of the case upon the theory that appellant provoked the combat or produced the occasion in order to have a pretext for killing deceased or doing him great bodily harm, was one not arising from the evidence, and, therefore, erroneous. I recognize, however, that there is often great difficulty in determining just when a combination of facts justify a charge on the law of provoking a difficulty, and I know that my associates have given to this record the most painstaking investigation and careful thought. They may be right. Unable to reach that conclusion, however, I take this occasion to briefly express my reasons.