The opinion
ON rehearing.
February 16, 1916
PRENDERGAST, Presiding Judge.
Appellant urges some of the same propositions which he urged when the cause was submitted and decided. We will discuss the one we think is necessary.
His first contention is that this court erred in holding that the lower court was justified in charging on provoking the difficulty, asserting: “We earnestly submit to the court that there is not one line of testh mony in this record from the caption of the statement of facts to the certificate of the court approving same that authorized the court to charge the jury on the law of provoking the difficulty.” Surely, appellant’s attorneys have forgotten the record, or they could make no such assertion.
The statement of facts contains some eighty-five typewritten pages and shows that some twenty-seven witnesses testified. In the original opinion we gave a correct general statement amply established by the evidence but did not quote the testimony of the respective witnesses. Of course, we can not now undertake to quote all of the witnesses nor all of the testimony. We will give some of it on this issue of provoking the difficulty. In addition to what we give, there is testimony by other of the witnesses substantially to the same effect.. The record teems with testimony raising the issue, and in fact showing that appellant provoked the difficulty. And the jury were clearly authorized therefrom to believe, as they did, that appellant provoked the difficulty for no other purpose than that of either killing deceased or doing him serious bodily injury.
There was but one difficulty between the parties. Several minutes elapsed between the beginning of it to the time that appellant killed
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the deceased. There is no particle of testimony in this record which shows, or tends to show, that appellant had the slightest cause from deceased to grossly insult him as he did and continue his gross insults and abuse of him from the time he first began it until after' he had stabbed him to the heart and killed him.
All of the witnesses — and there were several of them, including appellant himself — who saw and heard the beginning of the difficulty at Bowen’s drug store, clearly and without doubt, establish this state of fact there: The deceased, Eli Brown, walked into said drug store from his sister’s restaurant across the street to get a bucket of water at a hydrant at the back end of the drug store. In going, he passed appellant and some of his friends. He neither said nor did anything whatever to appellant. Appellant hailed him: “Hello, Brown.” Brown responded: “Hello!” After getting his bucket of water, he passed, back the same way that he had entered, and, when he got to the door appellant said to him, so he himself swore: “Don’t you want to shoot some craps, Eli?” Eli Brown, deceased, responded: “No, I don’t do that.” Appellant then said: “Suck your a — ■ then.” Deceased responded: “Don’t you get too smart.” Appellant then said to him: “That’s what I said, you son-of-a-bitch.” What we have just given is from the sworn testimony of appellant himself in his direct examination. Mr. W. C. Graham, who was present in the drug store at this time, swore that appellant then, in addition, said: “Go to hell, and go on there with your slop,” as Brown started off with his bucket of water. Graham further swore that appellant further said to Brown something like “kiss my a — .” Hubb Jones, one of appellant’s witnesses, who was present and saw and heard what occurred in-the drug store, swore that appellant also said to Brown there: “Brown, if you don’t like that, suck my a — , you son-of-a-bitch.” Other witnesses who were present testified substantially to the same thing. It is unnecessary to quote them. All of them also show that then Brown, at this time, set his bucket of water down and started to resent appellant’s most insulting, indecent and provoking language to him. Tom Menge, who was then present, swore: “Brown was turning facing him (appellant) with a bucket of water, and Geary (appellant) drew his knife and says: ‘G — d d — n you, don’t come on me. G — d d — n you, I’ll kill you.’ At the time the defendant drew his knife Brown was standing in the door or inside the door somewhere about the door. Brown was turned facing him, when he (appellant) called him (Brown) a son of a b — h.” Appellant himself, on cross-examination, swore that he himself then got out his knife. He said: “I went down there after mine. And I got it out and opened it, and I said: ‘That was just what I said, you son-of-a-b — h.’ ” All the other witnesses, and appellant himself, further swore that his friends then got in between them, and they all in effect swore that no one at the time held Brown but that two or three of them at the time held appellant and kept him from then assaulting and killing Brown with his knife. The evidence, as stated in the original opinion, without any dispute, showed the char
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aeter of his knife then drawn hy appellant, and with which he soon afterwards killed Brown. IÍ was a most deadly, weapon — in effect it was a dirk or dagger, with a guard between the handle and the blade, the blade being three and one-eighth inches long.
All the testimony, without dispute, shows that deceased went directly from the drug store to his sister’s, Mrs. Jarrett’s, a short distance only, at once procured a double-barrel shotgun, went immediately therewith to the Stacy store, procured shells and loaded the gun. His sister, Mrs. Jarrett, and her husband and other friends, having heard of the difficulty at the drug store, immediately went to deceased in the Stacy store and induced him to surrender the gun, which he did, and the shells were then taken out by Mr. Jarrett, his brother-in-law, and the gun placed under the counter. Deceased at no time thereafter had the gun in his hands or attempted to procure it but remained in the Stacy store. His sister and others were attempting to get him to go back to her residence, or hotel. Before he could do so, appellant went from the drug store to "Stacy’s store.
Aaron Bowen, who was present at the drug store and saw and heard what then occurred, swore that, after Brown left the drug store, appellant remained there just a little bit. He further swore: “I saw him when he left the drug store. He stated to me where he was going. He said Brown was over there with a gun, and he was going over there. He went out at the front door.” This witness further swore that he heard appellant down there at the store cursing and that he then went down there. Mrs. Burrows, the postmistress, swore that in order to reach Stacy’s from the drug store, appellant had to pass the postoffice, the postoffice and Stacy’s joining. That, when appellant thus approached Stacy’s store: “He was just saying: ‘The G — d d — n son-of-ab — h,’” to Brown. That Mr. Bowen tried to get him to go away. “I told him he would have to get away from the front of the office to swear; that I would make it cost him something if he didn’t.” The witness Arch Johnson swore that, at this time, “the defendant came up with a knife in his hand and was walking towards the crowd where Brown was,” and he, the witness, caught with both his hands appellant’s arm in which he had the knife, “and held him until Aaron Bowen walked up, and then we both turned and led him in behind some stores there”; and that appellant, when they first started away with Mm said: “You think I want to go, don’t you? I am not afraid of Mm or all the shotguns he can get.” On cross-examination Johnson further testified that at this time Brown was .right near the door of Stacy’s store, “and the defendant was right on the gallery with his open knife, and I took hold of him. He had his knife in his right hand.” That Brown said nothing to him at the time; that he and Aaron Bowen both took hold of him at that time. “I pulled him. He pulled back once.” Mr. .Graham further swore that when appellant came to the store the first time he came from out of the crowd somewhere, “and he came rushing up to the store and says: ‘Let me get to him.’ ” Mr. B. K. Bowen swore that when these parties took hold of him to take
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him away when he first went to the Stacy store, “he- seemed to he pulling hack.” “I heard him say that with an oath, the G — d d — n peaked face son-of-a-b — h said he was going to shoot me, and he must shoot me.” That he kept repeating this. That the parties who had hold of him were insisting that he come on and not have any trouble, and he would reply: “He said he was going to shoot me, and he must shoot me.” The testimony of these two witnesses and several others also is to the effect that Johnson and Aaron Bowen then took him away from the Stacy store and did all they could to persuade him not to return to the Stacy store, where Brown was. Appellant himself swore that they took him thirty-four steps from Stacy’s store and tried to keep him from going back there. Aaron Bowen swore: “He said he wanted to go back over there; that Brown wanted to run him out of town, and then I told him to go ahead.. He said he wanted to go back over there; that Brown was over there with a gun; that Brown wanted to run him out of town, and I told him to go ahead.” That appellant then went back to the Stacy store, and he, the witness, went back to the drug store.
Hell Pearce testified: “Just before the fight occurred I heard the defendant make a statement that he was laying for Brown; that he was after Brown.” Again, he heard him say he was laying for Brown, or was after Brown. “Brown’s the man I am after.”
All the witnesses, and appellant himself, said that it was upon his return to the Stacy store that the fight occurred in which appellant stabbed and killed the deceased. Mr. Graham swore that when appellant came back the second time to Stacy’s store, “and defendant came and cornered Brown and called him a G — d d — n son-of-a-b — h, and that was what I said a while ago, and he came back cussin’. He just . came up through the crowd there and called him a son-of-a-b — h. He called Mr. Brown a son-of-a-b — h. I think that was the second time he came back and called him a son-of-a-b — h. He came up there ¡twice cursing.” Mrs. Burrows testified that, when appellant returned to the Stacy store the second time, “Mr. Atkison (appellant) ran into the store; and, as he went in he said just the same thing, the same oath, that he had been saying. He just ran past Mrs. Jarrett and grabbed Mr. Brown by the collar.” What he had been saying, as shown by a previous quotation of her testimony, was calling Brown a G — d d — n son-of-a-b — h. Mr. W. B. Arthur swore that, when appellant returned this second time, deceased said to him: “‘You have abused me without any cause’; and he says: ‘I think you ought to take it back’; and Atkison refused to take it back. He says: ‘I won’t take anything back, you peaked faced son-of-a-b — h’; and, when he said that Brown jumped and struck at him; and, when he did that, I pushed Brown back with that arm and shoved Atkison back with that one, and they came around me, and Brown came round the other way, and they went to knocking.” Mr. B. K. Bowen swore: “The deceased said: ‘You called me- a son-of-a-b — h, didn’t you?’ Geary said: ‘Ho.’ Brown said, ‘You called me a son-of-a-bitch,’- the second time. And that he
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(appellant) said: ‘Yes, you are a G — d d — n peaked face son-of-ab — h.’ And then they clinched there.” Jess Stacy swore that when deceased took hold of appellant, he said: “‘You called me a son-of-ab — h,’ and he (appellant) said: ‘Yes, I did, you G — d d — n son-of-ab — h or bastard.’ I heard him say that. He didn’t say a word about willing to take it back or anything or willing to apologize, but did say he was a son-of-a-b — h bastard.” Appellant himself on cross-examination swore: “The first I knew Brown had me in the collar, and he said: ‘You called me a son-of-a-b — h,’ and grabbed me in the collar, and I stated: ‘Yes, that he was a G — d d — n son-of-a-b — h.’” O. B. Jarrett swore that when appellant started in the house just before the fight: “I heard him say: ‘The d — n son-of-a-b — h.’”
All the testimony then shows that deceased and appellant went to fighting. They clinched. Appellant was cutting and stabbing deceased with that most dangerous knife, or dagger, and plunged it into deceased’s heart, or the aorta thereof; and that when deceased then got away from him, he ran and the appellant ran after him. Deceased fell in the dark, and almost immediately thereafter expired. In running after him, the appellant stumbled; and, as deceased was in the dark and he could not see him, he immediately returned to the Stacy store, got up on the gallery, and even then Mrs. Jarrett swore he said: “Go, you son-of-a-b — h.” Tom Menge swore that when appellant got back up on the gallery of the Stacy store immediately after he had stabbed and run deceased: “I heard the defendant say that he was going to kill every G — d d — n Jarrett in that town that night.” Mr. B. K. Bowen swore that appellant then said: “The Jarretts are G — d d — n m — r f — g s — s of b — hes, every one of them.” Mrs. Fannie Johnson, who was 350 or 400 yards away, said she heard him then talking and cursing loud, and: “I heard him call the Jarretts’ name and say they were G — d d — n s — s of b — hes, and everybody that was kin to them, and everybody that was friends of them.”
There can be" no shadow of doubt but that provoking the difficulty by appellant was in the case from start to finish, and it was the duty of the court to charge on provoking the difficulty. The State has just as much right to-have every issue raised by the evidence in its favor charged upon as the accused has. As stated in the original opinion, the court correctly charged on this question and also in appellant’s favor charged the converse.
We have carefully reconsidered the other grounds of appellant’s motion for a rehearing. There is no necessity of restating or discussing them, as they were all properly decided in the original opinion. Nothing new is urged as to these grounds in the motion for a rehearing. The motion is overruled.
Overruled.