stating that after altercation, defendant retrieved pistol before seeking out complainant
How later courts described this case
- stating that after altercation, defendant retrieved pistol before seeking out complainant
- "When the evidence shows that one gets angry with another, goes and gets a pistol, and goes to the home of the person with whom he had a difficulty, coming up between the two houses, with the pistol in his hand, it is extremely doubtful if the court should have submitted the issue of self-defense at all; but if he does do so, and then in connection therewith he tells the jury if they believe under the facts and circumstances that such acts were done with the intention to kill his adversary, he could not claim selfdefense,... the case is presented in a way he cannot complain"
Written by the judges who cited it.
The opinion
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DAVIDSON, Presiding Judge
(dissenting).—In dissenting I do not care to make a statement of the ease, it being, I think, sufficiently stated by Judge Harper. Under the statement made in the majority opinion the evidence excludes the idea that the issue of provoking the difficulty was in the case. Appellant had the right of self-defense in the case untrammeled by the issue of provoking the difficulty if his or the State’s evidence be correct. As I understand the facts stated, if the question of provoking the difficulty is in the case at all, it is by reason of the fact appellant armed himself and followed Neyland until there was an opportunity to shoot, and as soon as he was in shooting distance of Neyland began shooting. This does not raise the issue of provoking the difficulty. If he armed himself for the purpose of shooting Neyland, and as soon as he got within reach began shooting, the issue of provoking the difficulty could not be in the case. If he armed himself intending to resist an attack by Neyland, his right of self-defense should not have been trammeled by the issue of provoking the difficulty. It was either an unprovoked assault on his part for the purpose of killing Neyland, or he acted in justifiable self-defense. Under either view of the case from the testimony the issue of provoking the difficulty could not be in the ease. The State’s evidence makes appellant the attacking party. He did not undertake to provoke Neyland to shoot but simply followed and shot at him after arming himself for that purpose. The unquestioned rule in Texas is thus stated by Mr. Branch in his Criminal Law of Texas, section 464: “If he (the slayer) provoked the combat or produced the occasion in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing would be murder, no matter to what extremity he may have been reduced in the combat.” Cunningham v. State, 17 Texas Crim. App., 95; Thuston v. State, 21 Texas Crim. App., 248; Keeton v. State, 128 S. W. Rep., 413 ; Arto v. State, 19 Texas Crim. App., 136; Roach v. State, 21 Texas Crim. App., 254, 17 S. W. Rep., 464 ; Thumm v. State, 24 Texas Crim. App., 703, 7 S. W. Rep., 236 ; Puryear v. State, 56 Texas Crim. Rep., 238 , 118 S. W. Rep., 1042 ; Johnson v. State, 26 Texas Crim. App., 631, 10 S. W. Rep., 235 ; Allen v. State, 24 Texas Crim. App., 224, 6 S. W.. Rep., 187; Green v. State, 12 Texas Crim. App., 449; Cartwright v. State, 14 Texas Crim. App., 486; Crist v. State, 21 Texas Crim. App., 367, 17 S. W. Rep., 260 ; Warren v. State, 31 Texas Crim. Rep., 573 . 21 S. W. Rep., 680 . This would be provoking the difficulty, and would be a limitation upon his right of self-defense, but the converse of the rule is equally clear that it was error to charge on provoking the difficulty when the evidence does not raise the issue. See authorities collated by Mr. Branch in his work on Criminal Law, section 466, where a great number of the cases are collated. If the State’s case is an unprovoked homicide, and defendant’s case is perfect self-defense, the issue of provoking a difficulty is not in the case. Beginning a difficulty is not provoking one. Casner v. State, 43 Texas Crim. Rep., 12 ; Dent v. State, 46 Texas Crim. Rep., 173 ; Carr v. State, 48 Texas Crim. Rep., 288 ; Roberts v.
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State, 48 Texas Crim. Rep., 380 ; Reese v. State, 49 Texas Crim. Rep., 243 ; Lockhart v. State, 53 Texas Crim. Rep., 595 , and for further cases see section 466, supra.
Again it is well stated as the rule that if the only question involved is, who made the first attack, provoking the difficulty is not in the case. Casner v. State, 43 Texas Crim. Rep., 12 ; Pollard v. State, 45 Texas Crim. Rep., 121 ; Reese v. State, 49 Texas Crim. Rep., 243 ; McCandles v. State, 42 Texas Crim. Rep., 61 ; McMahon v. State, 46 Texas Crim. Rep., 549 ; White v. State, 42 Texas Crim. Rep., 570 . If the deceased was the aggressor and began the difficulty, it was error to charge on provoking the difficulty. Jones v. State, 17 Texas Crim. App., 611; Dent v. State, 46 Texas Crim. Rep., 173 ; Crowson v. State, 51 Texas Crim. Rep., 14 .
Again, it is stated as a proposition supported by the authorities, that going to a place, though armed, will not of itself deprive a defendant of the right of self-defense, and, therefore, provoking the difficulty would not be in the ease. Grayson v. State, 57 S. W. Rep., 809 ; Hall v. State, 42 Texas Crim. Rep., 449 ; Shannon v. State, 35 Texas Crim. Rep., 6 ; Crow v. State, 48 Texas Crim. Rep., 421 ; Cartwright v. State, 48 Texas Crim. Rep., 502 .
It is unnecessary to pursue this thought further. Under the evidence the issue of provoking the difficulty was not raised by the evidence, and appellant’s right of self-defense was improperly limited by a charge on provoking the difficulty. As before stated, this was a case in which either the defendant intentionally went to where Eevland was for the purpose of killing him and proceeded to shoot at him, or it was an attack by Eevland upon him when he had done nothing to provoke him to the difficulty, and justified him in firing upon Eeyland. The issue was not provoking the difficulty hut the issue was who was the attacking party. Under such circumstances the limitation of provoking the difficulty should not have limited the right of self-defense. I therefore respectfully enter my dissent.