# Muckleroy v. State > Court of Criminal Appeals of Texas · December 11, 1957 · 165 Tex. Crim. 629 URL: https://www.frixlaw.com/law-library/cases/9762796 ## Case - **Full name:** Ralph Muckleroy, Jr. v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** December 11, 1957 - **Citations:** 165 Tex. Crim. 629; 310 S.W.2d 315; 1957 Tex. Crim. App. LEXIS 2413 - **Precedential status:** Published - **Opinion:** On rehearing by Davidson - **Judges:** Dice, Davidson - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9762796 ## Opinion text ON APPELLANT’S MOTION FOR REHEARING DAVIDSON, Judge. Appellant presses upon us his contention that the facts did not authorize the giving of the charge upon provoking the difficulty. We are aware of no decision which has gone further in holding the facts sufficient to warrant a charge on provoking the difficulty than that reported in Norwood v. State, 135 Texas Cr. Rep. 406 , 120 S.W. 2d 806 . We are also aware of the fact that unless the Norwood case sustains the trial court, here, in charging on provoking the difficulty, then this case should be reversed. It becomes of the utmost importance, then, that the fact situations in the two cases be examined to determine if the Norwood case controls. In the Norwood case there was ill-feeling. Norwood began the controversy by filing a complaint against the deceased’s father, charging him with theft of goats. A search warrant was obtained to search the Word ranch for the stolen goats, and the sheriff went to the ranch to execute the warrant. Soon thereafter the appellant, accompanied by three companions, all armed, appeared at the ranch. At deceased’s request, the sheriff took charge of the firearms while appellant and his companions were on his premises. The deceased went to the house and got a gun, which the sheriff took from him. A search of the ranch produced no stolen goats. *636 At the conclusion of this series of events, Norwood stated that he wanted the “affair” to be peaceable, to which statement deceased replied by calling attention to his act in coming on the ranch armed. At that time, Orville Word, an uncle of the deceased, called Norwood an s-o-b-. Again the sheriff stopped the difficulty. This is the situation existing when the affair broke up with Norwood’s telling the uncle that “ ‘he would see him later’ ” or “ ‘we will meet again.’ ” A few hours thereafter, the deceased and his uncle went to the town of Burnet. Deceased parked his car in front of and went into the postoffice, leaving his uncle in the car. Norwood’s car was parked nearby. While deceased was in the postoffice, Norwood moved his car immediately behind the deceased’s car, in which the uncle was still seated. As deceased came from the postoffice and approached his car he called his uncle’s attention to the fact that Norwood had blocked them in so that they could not get out. Norwood then motioned to the uncle and said to him, “ ‘Come around here, Mr. Word, I want to talk to you.’ ” Deceased reached in his car for a gun and said to his uncle, “ ‘Don’t go * * * .” As deceased was attempting to get the gun out of the car, Norwood shot him. In upholding the action of the trial court in charging upon provoking the difficulty under the above facts, wé did so upon the conclusion that the evidence was sufficient to warrant a finding by the jury that (a) Norwood’s act caused deceased to reach for his gun, (b) that all the facts transpiring at the time of the shooting and prior thereto were sufficient to authorize the jury to find that what Norwood did and said was calculated to cause the deceased to reach for his gun, and (c) that Norwood intended, by those acts, to provoke an attack as an excuse for killing the deceased. Let us examine the instant facts, especially where we find similar or comparable fact situations: The first evidence of animosity or ill-feeling on the part of the appellant toward his father (the deceased) was when appellant, about a month prior to the killing, told his uncle (deceased’s brother) that “his daddy was messing into his business,” and he further said, “ ‘Uncle Tom, I am going to kill the old man if he don’t quit messing in my business.’ ” *637 So, here, as in the Norwood case, we find the accused evidencing' animosity against the deceased. On the day of the killing we find appellant in his car in front of deceased’s home and there engaging- in a difficulty with his (appellant’s) wife. The deceased secured a shovel and went to her rescue. Appellant took the shovel away from him and thereupon forced the deceased toward the house, shoved him in the front door, and told him to stay in the house. Deceased secured a pistol, came out, and ordered appellant to “back up.” A similar situation is shown in the Norwood case in the meeting at the ranch where all the parties were armed and which broke up with Norwood’s telling the uncle of the deceased that “ ‘he would see him later’ ” or “ ‘we will meet again.’ ” There is in the instant case a significant fact not in the Nor-wood case, and that is the difficulty which appellant had with his wife in the presence of the deceased. Was that attack on the part of the appellant done with the intent of causing the deceased to do what he did — that is, to go to the rescue of appellant’s wife? If the jury should have so believed, then such was an element entering into the question of provoking the difficulty. After that difficulty, appellant, with his wife, drove away and shortly thereafter returned with a shotgun. As he approached the house he jumped from the car with the shotgun in his hand and, after crouching down by the car, began walking down the driveway toward the back of the house. The deceased, seeing what was happening, fired a shot from the pistol — which some of the witnesses said was in the direction of an outhouse and not in the direction of the appellant. Several shots were heard, among which was one from a shotgun. Appellant was next seen walking down the driveway carring the almost lifeless body of his father. Here, again, we have comparable facts to those in the Nor-wood case — that is, that the appellant returns to the home of the deceased armed with a shotgun, gets out of the car with the shotgun, crouches down by the car, and advances toward the back of the house, and, after the deceased begins firing his pistol, shoots him with the shotgun. *638 In evaluating the evidence it must be kept in mind that the question is whether there were facts from which the jury, in the exercise of their discretion, would be authorized to conclude showed that appellant intended to provoke the deceased into doing some act which he might use as a pretext for carrying out his unlawful design — which was to kill the deceased — and that the acts on the part of the deceased were reasonably calculated to cause the deceased to attack him. It is also significant to note that the facts show that it was the deceased who made the first attack, both at the time of appellant’s difficulty with his wife and also when the appellant returned to the home of the deceased and got out of the automobile with the shotgun in his hand. Thus is present that necessary element of provoking the difficulty — which is that the deceased made the first attack. We are constrained to conclude that, under the authority of the Norwood case as applied to the instant facts, the trial court was warranted in giving the charge on provoking the difficulty. Accordingly, the appellant’s motion for rehearing is overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9762796. Public record. Not legal advice.