The opinion
DAVIDSOH, Judge
(dissenting).—Appellant was convicted of murder in the second degree, his punishment being assessed at, ten years con.finement in the penitentiary, which is five years in excess of the minimum punishment fixed by the Legislature for that degree of murder.
I deem it unnecessary to enter into a general statement of the facts as this has been sufficiently clone perhaps in the opinion of the majority so far as the questions I purpose to discuss are concerned, I can not agree altogether with my brethren, as to that part of the statement in the opinion which refers to the two roads that lead from appellant’s residence to town. Quoting from the majority opinion I find this: “Again appellant claims that the court ought to have told the jury that the appellant was not bound to take some other road to town, or diverge from his usual course in order to avoid meeting the deceased. The testimony in this case does not raise any such issue. The State never even asked appellant anything about it, either directly or indirectly, nor did the State in any way contend, so far as this record shows, that appellant ought not to have gone this road to town but some other, but it was conceded by all of the State’s testimony, where the subject was mentioned at all, that this was the road to town, the one usually traveled not only by appellant but by everybody else in that neighborhood. Sometime after the killing the appellant had a surveyor to go out on the ground and measure the distances and tell about the timber intervening between appellant’s house and where he killed the deceased. Hot a
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word of this testimony indicates that there was am other road that he should or could have traveled other than the one he was traveling, in going to town. All this testimony was introduced for the purpose of attempting to show that Mrs. Head, one of the State’s witnesses, could not have seen the deceased, nor his team at the time nor immediately after the shooting because of the obstructions from appellant’s house to ■where deceased was killed, for the purpose of disputing her on the point when she testified -what she saw of the parties at the time and immediately after the killing.” So far as whether the State or the defendant put in the testimony as to the different routes would make no difference so far as its effect upon the jury is concerned. If there were two roads from appellant’s house to town and he traveled them indiscriminately, or if he traveled the road usually that he did not travel the day of the killing it might and did become an important issue and evidently was the subject of serious discussion before the jury that the defendant selected the particular road for this occasion in order that he might meet the deceased and bring on this difficulty and produce this tragedy, when by going the road he also traveled it could have been avoided. Mrs. Head testifies as follows: “It was when he first come up that he wanted the shells and said he was going back where Will Griffin was. .But he' went around the other road then. When he got on his horse, he didn’t go back to where Will Griffin was, but went the other way.” How under this testimony of Mrs. - Head when appellant returned home after the killing of Griffin and got the shells, he left traveling the other road; and she further testified: “He saddled his horse, got the cartridges and came around by old man Lucas’, a different route to what he usually comes to town. The road I usually travel in coming to town is the one by Carey’s house, by Griffin’s house. That is the road Bun (appellant) and all of us people travel in coming to town. That is the nearest and customary route to town,
but Bun had been going the other way.
(Italics mine.) The road that I spealc of runs through Bun’s field and through Mr. Griffin’s field, his cotton patch and corn patch, and crosses the creek. That road runs up by Mr. Lucas’ house and by our house and makes an angle by my house and out by Rayburn Hill’s. When we come to town we come down there, and before we get to Mr. Lucas’ we make a turn and come by Bun Carey’s and Mr. Griffin’s. Sometimes Bun leaves his house and comes south along the same road. He don’t go that way all the time. That is the nearest route for Bun to come. I don’t know how much sand there is around by Mr. Lucas’.” Mr. Lucas testifies- as follows in reference to appellant using another road: “That is the only statement he made to me about it that I remember of, and he struck off in a gallop. He went the road toward Mr. Smith’s. Mr. Smith lived right east of me.” 1
How, as I understand this testimony it shows that when appellant galloped away from this conversation with Lucas going east towards Smith’s house, it demonstrates that he came to town on the road which Mrs. Head said he sometimes traveled prior to the time of the homicide.
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But be that as it may, this testimony shows clearly that there were two roads, and Mrs. Head testifies that he traveled these different roads, and this, as I understand, is the only legitimate conclusion to be deduced from her testimony. I have made this statement in view of what the majority opinion says and the conclusion reached in that opinion. The majority opinion seems to be based upon- the idea that in order to raise the question .brought out by appellant and urged for reversal, it was necessary for the State to emphasize these facts about the two roads. Mrs. Head was a State witness. It would make no difference how it got before the jury if the evidence was before the jury and it was used against appellant, that he traveled the road that led by where deceased was instead of going the other road. The effect used in argument or deduction from' these facts would be‘equally detrimental. If it was urged before the jury, as it unquestionably was, that appellant instead of going the other road had taken the road by the deceased, it could he detrimentally used against appellant and the jury might and could infer that he went the road by the deceased’s for the purpose of bringing on the difficulty, especially when viewed in the light of the fact that he did kill him'. If he had gone the other road the killing would not have occurred.
Without going further into this phase, this brings us to the special charge asked by appellant and refused by the court, in the following language: “The party whose person is unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant. Therefore you are instructed that if you believe from the evidence in this case, that the defendant Bun Carey knew that the deceased Will Griffin was working in his field by the side of the public road which Carey usually traveled in coming to Stephenville, and Carey was traveling said road on his way to Stephenville at the time of the homicide, defendant was not bound to take some other road to town or diverge from his course in order to avoid a meeting with the deceased, and the defendant had the further right to arm himself to protect his life against any former or expected attack upon him by the deceased, and to carry said arms whenever and wherever he believed his life to be in danger, and was not bound to retreat in any manner, and the fact that he did so, would not in any manner militate against, alter, or abridge his right of self-defense if he acted upon the reasonable appearances of danger or serious bodily injury, or death, either one or both, at the time of the homicide.” How, the court gave the following charge with reference to retreat: “A party whose person is unlawfully attacked is not bound to retreat in any event in order to avoid the necessity of killing his assailant.” There was no application, however, of this proposition directly to the facts, but it was given in the abstract. There was no charge given by the court, either directly or indirectly, as to the right of appellant, in view of the threats proved against him, to carry arms for his self-defense. Hor does the charge anywhere instruct the jury that appellant was not bound to take some other road in traveling to town, or that he was not compelled to
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diverge from his course in order that a meeting with the deceased might be avoided. Nor did the court applying the law of retreat charge the jury that his failure to retreat would in no manner abridge his right of self-defense under the circumstances here stated. The law is that retreat is a part of the right of self-defense, and it has always been held reversible error not to charge it, where the facts in the case required such an instruction. This matter was discussed in Arto v. State, 19 Texas Crim. App., 126. I am of the opinion that appellant traveling this particular road on this particular occasion and the homicide resulted while going down the road, and the contention of the State that he went down this road for that purpose, required the charge requested or a similar one. In this connection it is further contended, and I think correctly, that the court should have instructed the jury that if appellant, knowing that the deceased was there, started to go to town and did go to town on that road, that he had a right to do so if he saw proper, and anticipating trouble with deceased he further had a right to arm himself in anticipation of the execution of the threats made against his life or against his body by the deceased. Our law lays down a correct rule that wherever threats have been made by deceased against the accused that the accused has a right to arm himself and call on the other party, his adversary, for an explanation, and if the other party becomes the attacking party, under such circumstances the law of self-defense, or his right to defend himself, will not be compromised or abridged. The decisions on this question in this State are uniform and especially so since Shannon v. State, 35 Texas Crim. Rep., 2 . Even had the appellant armed himself and gone to where his adversary was and asked of him an explanation, and deceased had then made an attack upon him, his right of self-defense would not be in any way compromised. Of course, if appellant did any act or said any words to provoke a difficulty and did provoke it in order that he might kill, the law of self-defense would be compromised under the rule of provoking a difficulty, but the court should have submitted appellant’s theory to the jury in the connection requested by appellant so that the jury might not' be misled to using the evidence against him that he traveled the road that he did travel, which carried him by deceased’s house, armed as he was, when he might have or could" have traveled some other road.
Appellant requested another charge, which was refused. It is as follows : “In connection with the law of self-defense you are further instructed : That if you find and believe from the evidence in this case that Will Griffin, the deceased, threatened to take' the life 'of the defendant, Bun Carey,
or
to do him some serious bodily harm, and that said threats were communicated to him prior to the killing, or that deceased at the time of the homicide threatened to take the life of the defendant, and at the time of the homicide the deceased, by words or acts, or gestures, or any overt act, manifested an intention to execute said threat and viewed from the standpoint of the defendant alone, it produced in the defendant’s mind a reasonable expectation of death or
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serious bodily injury, or if you have a reasonable doubt thereof, you should acquit the defendant, and this you should do, although you may believe at the time that said threats were untrue and that Will Griffin did not intend to kill the defendant Bun Carey. In this connection you are further instructed that it is immaterial whether any threats were made prior to the homicide or that said threats were true, it is only necessary to defendant’s right of self-defense, that he had been told that deceased had threatened his life or to do him some serious bodily harm, and that the deceased at the time manifested an intention by words, acts or conduct to execute said threats, viewed from the standpoint of the defendant alone, sufficient to raise in the defendant’s mind a reasonable expectation of death or serious bodily harm, and if so, defendant had the right to kill the deceased, and if you so believe from the evidence, or have a reasonable doubt thereof, you should acquit the defendant and say by your verdict not guilty.” This requested charge was refused, and is properly presented for revision, and an exception was taken to the following charge given by the court: “Where the defendant, accused of murder, seeks to justify himself on the ground of threats against his life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offense, unless it be shown that at the time of the homicide the person killed, by some act then done, manifested an intention to
excuse
the threats so made.” The other paragraph of the court’s charge in this connection, and to which an exception was also reserved, is as follows: “How if you believe from the evidence in this case that prior to the homicide the deceased had made threats against the life of the defendant,
and
to inflict serious bodily injury on defendant, and that at the time of the homicide the deceased, by some act then done, manifested an intention to
excuse
the threats so made, or if you have a reasonable doubt as to whether or not he did, then you will give the defendant the benefit of such doubt and acquit him.” I do not purpose to enter into a discussion of the error in the court’s charge wherein he uses the word “excuse” in place of “execute.” There is fatal error, however, in that portion of the charge which coupled the threats to kill
and
to inflict serious bodily injury. The law of self-defense justifies if the party threatened to kill, or inflict serious bodilv injury. The law of justifiable homicide from this viewpoint would be as perfect against one as the other. It is not requisite under the law of self-defense that the purpose to kill
and
to inflict serious bodily injury should combine or- concur. If either existed appellant would have the right to defend under the law of justifiable homicide. If the deceased did not utter the threats to kill
but only to inflict serious bodily-injury,
this error would be intensified, because the court was requiring the jurv in that event to believe that the threat was uttered to take the life or to kill, when, as a matter of fact, it was not uttered under this theory, but only to inflict injury. Therefore, the jury was required from that standpoint to believe things not proved in order to authorize an acquittal. In other words, if those threats were not
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made to kill, but the threat was
only
to inflict serious bodily injury, the court required the jury to believe two things, either of which would justify, when the facts would only show one threat, or a threat to do one thing. A party has equal right to defend himself against threats to inflict serious bodily injury as he has against threats to take his life. It is not necessary that the two combine, and in this particular case it is not clear that the threats were to kill, but it is clear that the threats were to inflict serious bodily injury. However, I think the evidence would justify and require the court to charge both theories. If both characters of threats were made, or if there was a doubt about that fact, the court should have instructed as the statute requires and as our law demands, that if threats to kill
or
to inflict serious bodily injury, or either were made, the law of self-defense would be complete and perfect so far as that phase of the case is concerned. The charge requested by appellant may not have been as artistically drawn as it should1 have been, yet it called the court’s attention to the law applicable to the case, and that the charge given by the court was not the law. So under any view of the case the court’s charge was reversible error. It deprived the defendant of a substantial right guaranteed to him by the law of the land. He was entitled to the law as enunciated by the statute and our jurisprudence, and the court’s charge coupled his right of self-defense with propositions too onerous and not justified or authorized by our law.
Without going further iuto the case I state the above as some of the reasons why I believe this judgment should not be affirmed, but that it should be reversed and remanded that the appellant may have a trial under the law as it has been fully enunciated heretofore by both the statute and the decisions.