This appeal is prosecuted from a conviction had in the District Court of Erath County on January 31 of this year, finding appellant guilty of the offense of manslaughter and assessing his punishment at confinement in the penitentiary for a period of five years.
The record presents a number of questions of great difficulty, and in order to make the opinion understood it will be necessary to make a somewhat detailed statement of the issues arising on the trial and to state some of the evidence in relation thereto. Appellant and Robert L. Snider were neighbors, both farmers, and lived not far apart in Erath County. The deceased was a somewhat younger man than appellant, and a very stout, athletic man, weighing some 175 pounds. Appellant was about forty-six years of age, weighed about 135 pounds, and was somewhat disabled in his left hand, and was not nearly so stout as deceased. The evidence indicates there had been some unpleasantness between the parties prior to the day of the fatal meeting, which was of such a character that had not wholly interrupted their intercourse with each other. From the record it appears that on the morning in question appellant passed by the house of deceased going to the house of one Sanders with the intention of going with Sanders to Stephenville, and the evidence showed that the road from appellant's residence to Sanders' house went by the home of deceased. The road running by appellant's place was in a general east and west direction, deceased's house being on the south side of the road. Arriving there about 8 o'clock in the morning, it appears by the testimony of Calvin Snider, a son of deceased, that appellant spoke to him and told him to tell his father to keep his calves out of his field, and that if he did not there was going to be serious trouble, and that he then asked if deceased was at home, and being answered that he was and whether he wanted to see him, he said he did, and to tell him to come out. Young Snider says he told his father that appellant wanted to see him, and that his father walked out to the gate with a cotton picking sack in his hand, and that the parties stood there and talked; that after they had talked for some little time appellant said to deceased: "Are you ready," and that his father said, yes, and that they then walked down the road side by side. He also says when appellant first came to the house he had open a large knife in his hand, and that he had this knife in his hand open as he and his father walked off down the road towards the west. He saw them no more until after the killing. Mrs. Snider was introduced, who testified that a short time after appellant and her husband left the gate, that she stepped out into the front yard, and just as she got out she saw her husband fall or sink down in the road, and at the time saw appellant break and run and call a man who was in front of him, but at the time she thought nothing of the incident. Lee Riley testified that he saw the parties on the morning in question standing at the gate, and that when he got within fifty yards of them they both started off walking west down the road. That just about the time they left the gate he saw appellant put his hand in his pocket and get out his knife, and hold it in his hand as he walked along, appellant on the right and Snider on the left; that appellant's hand, in which he carried the knife, was down in
the usual manner of carrying one's arm, but a little out from his coat, and, as it seemed to him, a little to the back. He says he overtook these men about 100 yards west of Snider's house, and they turned out of the road a little, and about the time he got to them his mules got scared at something and by the time he got them stopped he had passed the men a little, and at this time appellant was next to the wagon and deceased slightly in front of him; that as he stopped he asked them what the trouble was, when deceased replied that appellant was just blowing around, and then said if he would put up his knife he would show him how quick it was done. That he told them there was no use to have any trouble, and drove on a distance of about 100 yards when he heard someone holloing, and looked back and saw appellant coming up the road. That when appellant came up he said he wanted him and Kerr, a neighbor, to go down and see about deceased; that he drove over to the fence and hitched his team, and appellant said to him: "You keep your head; I will want to use you for a witness." In the conversation this witness says that appellant told him that he had hurt Snider after Snider had hit him with a club, but that he did not know how bad he had hurt him; that he had tried to hurt him, and for them to go and see. He also says as he passed these men they were standing on the side of the road, appellant being nearest the wagon and facing south, and still having a knife in his hand holding it back behind him in what he would call a striking position, and that they were standing close enough to touch each other, deceased facing north and appellant facing south, and that deceased had nothing in his hand when he saw them. That right at their feet, but whether just between them or little to one side he did not remember, there was a pretty good size stick some three and one-half or four feet in length. He testified when appellant came up that there was blood on his face and clothes, and that his hat was torn on the crown and brim. He also testified that when he went to where deceased was he saw lying some twenty feet from where the two men were standing when he passed them in the road, the large stick which he had mentioned before lying in the middle of the road not far from Snider's body. It also appeared there was a smaller stick lying on and rather between Snider's legs. It was shown by other witnesses that this stick had been somewhat burned and had dirt and trash on it, and there was no evidence of any dirt or anything else being on deceased's hands. In a general way, and as far, as in view of his absence, could be expected, Anthony Keer corroborates the witness last named. The knife referred to was shown to have been a one-bladed knife with a blade about four inches long, and the point of the blade, the evidence tends to show, was broken during the difficulty, leaving the remaining part of the blade about three inches in length and about three quarters of an inch in width. It was shown more specifically by the testimony of Bates Cox that the small stick lying between deceased's
legs had been burned and charred at one end and that the small end of the stick was near what is called the crotch of deceased's trousers. He says he examined the hands of deceased carefully and there was no smut on them like that on the burned stick. The evidence showed that there were four wounds on the body of deceased, two in the chest, one in the abdomen, and one in the small of the back. The two in the breast were superficial and did not extend into the cavity, and were not serious. The wound in the small of the back was a stab wound about half an inch to the right of the middle line of the back, and about two inches deep, extending to and striking the body of the spinal column. The wound in the abdomen was just above the navel about an inch and in direct line with it, and was the fatal wound. J.D. Biggs was introduced by the State, who testified that he had a conversation on the morning of the killing about 9 o'clock with appellant, and that appellant asked him out to one side of the house and talked to him privately in regard to his knife. He stated the knife he had was a large one, and that some of his friends or neighbors thought that he had better turn in the smaller knife to the officers when they came, and asked him what he thought about it. He says he told him he would turn in the knife he had, and that appellant said in substance that that had been his own view of the matter. This witness makes the following statement as to what appellant said touching the facts leading up to the difficulty:
"That he was going to town that morning, and in doing so went by Snider's house; that Snider's calves had been bothering him, and that when he got even with Snider's house he saw Snider's boy in front of the house, and told the boy to tell his father that he wanted him to keep his calves out of his cotton. He said the boy told him his father was in the house and asked if he, defendant, wanted to see him, and that he told the boy he did; that Snider then came out, and that he then told Snider to keep the calves out of his field, and that then Snider seemed to get mad and said that he, Snider, could whip him. He said that he told Snider then that if he would go away from the house, or down the road, he did not think he could do it, or that if he would go away from the house he did not think he could whip him. They then went on down the road, he said, and there Snider knocked him down with a club before he got his knife out of his pocket, and then said he had to do what he did. This is as near as I can repeat what defendant told me in regard to the difficulty between himself and the deceased."
On cross-examination he makes the statement in reference to the agreement to fight rather stronger. This statement is as follows:
"Defendant repeated to me his conversation with Snider out at the latter's gate. I do not recall that he said to me that Snider said, `Damn you, I can whip you.' He did, however, state that Snider said
he could whip him, and that he then told Snider that if he, Snider, thought he could to come on away from the house. He stated that he and Snider then went on down the road together. I do not recall that defendant stated anything about Snider picking up a stick, but he stated merely that Snider struck him with a stick, or hit him with a stick, and knocked him down before he got his knife out. Defendant did not go into detail as to the manner and character of the difficulty, further than I have stated the substance of the conversation."
Rube Bass, introduced by the State, testified that he was at the home of appellant about 10 or 11 o'clock on the day Snider was killed. He makes this statement:
"At this time and place the defendant spoke of the killing of Snider and said that he, defendant, was coming along the road to his neighbor, Sanders, for the purpose of coming to Stephenville, and that in doing so he had to come by the house of R.L. Snider, and there stopped and told Snider to keep his calves out of his field; that Snider said he would come out there and whip him. Defendant said that he told Snider he would have to go down the road, and that they then walked off together; that they had quarreled some about the trouble, but that it had stopped and they were talking in a business way, and that he, defendant, was thinking of going along, and that then Snider picked up a pole and struck him and knocked him down twice. He said that he knocked him down twice, and that he got up on the inside of Keer's field, and that he had knocked him down before he ever got his knife out."
On cross-examination he also seems rather to emphasize the matter of the agreement to fight. The statement on cross-examination is in this language:
"In the conversation referred to defendant said that in passing Snider's house he stopped to tell him about the calves in his field; that when he did so Snider got mad, and said that he would come out there and whip him; that he, defendant, told Snider that he would not do it there at the house, but would have to go down the road, and that Snider came out of the gate and they both then walked on down the road, and that as they went they quarreled, but finally quit and got to talking business. I do not recall that defendant said anything about having his knife, except to say that Snider knocked him down twice before he ever got his knife. He also said that after he was struck it seemed to addle him, and that he could not tell the particulars of it, and that about the first thing he knew he was in Kerr's field."
In this connection the following statement was made by appellant on cross-examination touching his conversation with deceased at the house:
"When I got to the gate I spoke first to the boy, Calvin Snider, and told him to tell his father to yoke the calves and keep them out of the cotton. The boy then told me his father was in the house,
and told him to come out. Snider then came out to the gate, and we both said good morning, or howdy, I don't remember which, and then I told him I wanted him to yoke his calves. He said all right, and I then told him to be certain to do it and not let them get into the other piece of cotton. I did not speak angrily any more than I am now. When I told deceased to be certain to yoke the calves I meant that I did not want him to neglect doing so. He then said: `Damn you, I can whip you.' To this I replied that he was a preacher and ought not to curse. Q. And then you told him he could not do it if he would go away from the house? A. No, sir, I told him — let me see how I did tell him — it was something about going on down the road. Q. You suggested to him to go away from the gate? A. I think I told him to come on down the road. Q. You invited him down the road with you? A. Certainly. Q. That was in response to his declaration that he could whip you? I mean that was after he had said that he could whip you? A. Yes, sir; I didn't want any trouble with him. I told him to come on down the road, yes, sir. Q. You meant what you said? A. I don't know that I did; I thought we were good friends. Q. You invited him off down there to have a fight? A. I don't know about that; from the way he talked I thought he was going to lick me.
"I still had the knife in my hand as we were walking along, and I think I was still whittling, and I might have had the knife drawn up at the time Lee Riley passed us in the road. Why did I do that? He had tried to get that stick of wood and I told him not to do it, but it is not a fact that I was cursing him and making him stand with my knife drawn. I might have been whittling on this post oak stick all up to this time, but do not recall just when I dropped the stick. I had cut it thirty or forty steps after leaving my house and had been whittling on it all the way. The stick was about as large as my finger and some eight or ten inches long."
He also makes the following statement: "We then walked on and came to where that club was in the side of the road, and he stopped and made a little move as though to pick it up, and I told him not to do that. He then said to me: `If you will put down that knife I will show you how quick this thing is done.' I told him I would not put the knife down, and about that time Lee Riley drove up, and as he did so he wanted to know what the trouble was. Deceased then said: `Anthony is just blowing off,' or something to that effect, and then said if I would put up my knife he would show me how quick it was done. I told him I would not do that, and that I did not want to hurt him, if he would behave himself. But I did not want him to hit me with that stick."
After Riley had left the parties alone, appellant testifies as follows: "Riley drove on by, going west, and after he had passed I told deceased that if he wanted to do what was right we would not have any trouble. He then asked/me what I wanted him to do,
and I told him that I did not want anything except to keep the calves out of the field. He then said he was perfectly willing to do that, and when he told me that I then said to him that I was in a hurry, and turned and shut up my knife and put it in my pocket and started to walk off. As best I recollect, I made a step right to the edge of the road when he struck me with that big stick. He was right up against me at the time. When he struck me this right hand went down on the ground, and the next blow — I don't think I went quite to the ground. I don't know whether I was hit on the back or the breast; I just knew that I was struck again. By the time I got my knife out he was fixing to strike me again, and I dodged down and caught him, and I suppose then is when I stabbed him."
There are numerous details which might be noticed, but the above statement will no doubt be sufficient to illustrate and render easily comprehended what we wish to say:
1. Among other things it is urged that under these facts it was error on the part of the court to charge the law of mutual combat, and it is earnestly insisted by counsel for appellant that mutual combat was not raised by the facts in the case. In support of this contention we are referred to the following authorities: Kelly v. State, 27 Texas Crim. App., 562; Meuley v. State, 26 Texas Crim. App., 274; Everett v. State, 30 Texas Crim. App., 682; Havard v. State, 55 Tex.Crim. Rep., 115 S.W. Rep., 1185; Stringfellow v. State, 42 Tex.Crim. Rep., 61 S.W. Rep., 719. We have examined carefully all these cases and none of them even by analogy are of much aid in solving this question.
In the Kelly case, supra, the following summary of the facts is made by Judge White, who delivered the opinion: "There was no proposition to or understanding between the parties that they were to fight. On the contrary the proposition and understanding was that they were to wrestle for a sum of money or upon a bet as to which could throw the other down. In preparing for this contest one or the other got mad, drew his knife and assaulted the other with it. The evidence is conflicting as to which party commenced the fight. During the fight both parties were cut with a knife. Under the facts of the case it was error to charge the law of mutual combat." Mutual combat is not discussed. That was a case in which the law of provoking a difficulty arose, and that doctrine is discussed in the case at length, but it seems not to be an authority on the doctrine of mutual combat.
In the case of Everett v. State, supra, the facts are thus stated in the opinion: "In substance, these facts are that the defendant's dogs were baying something in the field back of his house. That defendant got his double-barrel shotgun, which he had loaded with buckshot, as he testified, to defend himself whenever it became necessary to do so, and went to the back of his field to see what his dogs were
after, and finding that it was a polecat, started to return home, and when he had reached a distance of two or three hundred yards of his house he heard screaming there. This screaming was by his wife and children. They testified that the deceased came up to the gate, which, as above stated, is some forty or fifty yards from the front of the house, and inside the pasture. That he called to defendant by name, and told him to come out; that he intended to kill him. They commenced screaming, and the wife begged him to go away and let her husband alone. That he said he intended to kill him if it was the last act of his (deceased's) life, and flourished a pistol. Defendant, hearing the screams, ran up to the house, went around in front, saw the deceased at the gate, begged him to leave, telling him that his wife was almost in a dying condition, and that he was the cause of it. Deceased refused to leave, saying he was on his own premises. Defendant walked up close to the gate, when, he says, deceased ran his hand down toward his pocket, and with the other hand made a motion as though he would grab the gun; that he fired and killed him." Under these facts it was held that there was no evidence upon which to base a charge on mutual combat. But this evidence is so wholly dissimilar to the facts here as not by analogy to be of value.
In the Havard case, 55 Tex.Crim. Rep., supra, this statement was made: "Evidence was introduced also of a statement made by deceased, after the cutting, while being carried to the house, that appellant cut him at the gate, and cut him all the way down to where they stopped, and after they ceased running. The testimony of Thompson was to the effect: That when Rufus Cook threw down the singletree and ran, Arthur Shannon pursuing him, deceased, Sweet Cook, took after Arthur, and that appellant then told the deceased to `Hold on there; there are two of you.' That deceased immediately turned on appellant, and they tussled around a little and hit two or three licks. That the last lick was when appellant hit Sweet Cook in the back. They were close together when appellant inflicted the last cut, which was in the back. The testimony of Tom Thompson, Joe Havard and John Swain discloses the fact that there was blood at the place where the difficulty occurred near the gate; that there was blood spattered on a pine tree near where they fought, and that it was found on the ground, from where the difficulty first occurred, some 280 steps down the road, and about eighty yards further on." Under these facts it was held that the issue of mutual combat did not arise.
The only case which by any analogy could at all be held to even tend, in our opinion, to support appellant's contention, is that of Stringfellow v. State, 42 Tex.Crim. Rep., above cited. An inspection of the record will show that opinion was by a divided court, Judge Henderson dissenting on the ground that in his judgment the facts raised the issue of mutual combat. It will also be
observed that in the majority opinion Judge Davidson states certain portions of the testimony, and that Judge Henderson in his dissenting opinion quotes other portions of it at rather greater length than does Judge Davidson. The syllabus fairly well states the facts. It is as follows: "Defendant and another were in a restaurant, discussing defendant's uncle, when deceased, who overheard some remarks, became insulting on account of it. Friends interfered, and deceased was taken away, but shortly reappeared in front of the restaurant and told defendant that he could not come out there and repeat the remarks. Defendant went out, and a quarrel ensued. Deceased finally pushed defendant back and struck him twice with a walking stick, when defendant grappled deceased, striking with a knife whenever opportunity offered. Held, that it was error to submit the issue of mutual combat, since the evidence did not raise such issue." It should be further remarked that in that case it was held that the charge on provoking a difficulty in any event was erroneous, for which the case would have to be reversed. We think if the majority opinion should be held to be correct, and we have no disposition to criticise it, that the testimony in that case is nothing like so strong as the facts shown in the present record. Here the facts all show that the parties in leaving Snider's house had no other purpose than to fight. The statement of Snider was that he would come out and whip him. The reply of appellant was that if he would go away from his house, that he did not think he could whip him. The evidence further shows that the parties were quarreling as they walked down the road together. The evidence is further to the effect that at this time appellant was armed with a deadly knife. It also appears from appellant's testimony that during the time of their quarreling and as a part of their trouble, the deceased had tried to get a stick of wood with which he afterwards, as he claims, struck him and appellant told him not to do it. It would be difficult for the State ever to make out a case of mutual combat if this testimony should be insufficient either by circumstances or by positive testimony. So that we have no doubt upon the whole case, under all the facts, that the issue of mutual combat was in the case, and that the court did not err in submitting this issue to the jury.
2. The next question is, was the charge of the court on this issue, in view of all the circumstances, erroneous? While quite lengthy, it is indispensable to present the matter clearly that we should quote the entire charge of the court on this question. These instructions are embraced in the following paragraphs of the court's charge:
"You are further instructed, gentlemen, that if the defendant voluntarily engaged in a combat with deceased, knowing that it would or might result in the death or such serious bodily injury as might probably produce the death of either himself or the deceased, he can not claim self-defense.
"Now, if you believe from the evidence in this case, beyond a
reasonable doubt, that the defendant, B.M. Anthony, met the deceased, R.L. Snider, at the latter's gate, and that a quarrel ensued between them at said place, or that the deceased became angry and told the defendant he could whip him, and that the defendant then invited the deceased to go with him, the defendant, away from deceased's house and gate for the purpose and with the intention on the part of the defendant of engaging in a fight with the deceased, and for the purpose and with the intention on the part of the defendant to use the knife exhibited in evidence before you, in said fight, and that they, the defendant and deceased, for the purpose and with the intention of engaging in a fight with each other, left the yard gate and house of deceased, and walked together a distance of one hundred or from one hundred to two hundred yards, and that after they reached said distance from the yard gate and house of the deceased they voluntarily engaged in a combat, and that deceased used the large stick exhibited in evidence, or some other stick, and that the defendant used the knife exhibited in the evidence in said combat; and if you further believe from the evidence in this case, beyond a reasonable doubt, that said stick and said knife, from the manner in which each was used, were deadly weapons, and that when the defendant agreed to engage in said combat (if he did so agree) and did engage in said combat with the deceased under such circumstances, if he did do so, he knew that it would or might result in the death or serious bodily injury as would probably produce the death of either the deceased or himself, the defendant, and that in such combat the defendant did kill the deceased by cutting and stabbing him with the knife exhibited in evidence, then such killing would not be justifiable, no matter who brought on the attack or struck the first blow; but if the defendant's mind was calm and sedate and capable of contemplating the consequences of the act proposed to be done by him at the time he formed the design or agreed to engage in such combat with the deceased, and to use his knife therein, if he did form such design, or agree to engage in such combat, then he would be guilty of murder in the first degree; but if at the time he agreed to engage in such combat with the deceased and formed the design to do so (if he did so agree) the defendant's mind was agitated and disturbed and he was laboring under the influence of passion producing in his mind such a degree of anger, rage, resentment or terror as to render it incapable of cool reflection, but such condition of mind was not aroused by an adequate cause, as that term is hereinbefore defined to you, then said killing would be murder in the second degree. But if at the time the defendant agreed to engage in such combat, if he did do so, he was laboring under the immediate influence of sudden passion, such as anger, rage, sudden resentment or terror, rendering his mind incapable of cool reflection, and such passion was aroused by an adequate cause, as that term is hereinbefore defined, and that under such
circumstances he engaged in such combat, then said killing would not be of a higher grade of offense than manslaughter.
"Moreover, gentlemen, if the defendant at the yard gate of the deceased, agreed with the deceased to engage in a fight with deceased, and if at the time he intended to have only a fist fight with deceased, and not intend to fight the deceased with a weapon, and did not intend to use a knife on deceased, and if pursuant to such intention, he went with deceased some distance from the yard gate and house of the deceased, and if at the place they stopped, the deceased struck or attacked the defendant with the large stick exhibited in evidence before you, or with any other stick and produced in his mind such a degree of anger, rage, resentment or terror, as to render it incapable of cool reflection, and that under such circumstances defendant killed the deceased by cutting and stabbing him with a knife, he would not be guilty of a higher grade of offense than manslaughter.
"Moreover, gentlemen, if the defendant at the yard gate of the deceased agreed to engage voluntarily in a combat with deceased, either with the knife exhibited in evidence or without it, and with his fists, and if the defendant and the deceased left the yard gate and house of the deceased for the purpose and with the intention of engaging in a combat with each other, but after they had gone some distance from the yard gate and house of the deceased, they stopped, and the defendant decided to abandon the combat and the agreement to have a combat, and so stated to the deceased, and started to turn and leave the deceased, and the deceased then struck or attacked the defendant with the stick exhibited in evidence before you or with any other stick, and in defense of himself against such attack by the deceased, the defendant killed the deceased by cutting and stabbing him with the knife exhibited in evidence, or if you have a reasonable doubt as to whether or not the killing occurred under such circumstances, the defendant would be justified in such killing.
"Moreover, gentlemen, if the defendant did not agree to fight the deceased unless attacked, and if the deceased attacked the defendant with the club or stick exhibited in evidence before you, or either of them, and the defendant killed the deceased in defense of himself against such attack, or if you have a reasonable doubt as to whether or not the killing took place under these circumstances, you will give the defendant the benefit of such doubt and acquit him."
The principal attack is made on the 33d paragraph of the court's charge to the effect, in substance, that if at the time of the agreement to fight it was appellant's intention only to have a fist fight with deceased and not to use his knife, that if in pursuance of such agreement he went with deceased some distance from the yard gate and house of deceased, and if when they stopped the deceased struck or attacked him with a large stick which produced in his mind such a degree of anger, rage, resentment or terror as to render it incapable of cool reflection, and that under such circumstances appellant killed
deceased by cutting and stabbing him with a knife, he would not be guilty of a higher grade of offense than manslaughter. This charge was complained of in the motion for a new trial for the following reasons:
"Because said charge is not the law in this State in any particular, and because if defendant agreed to fight deceased with his fists and went to the scene of the homicide or place where the killing occurred for that purpose, and on arriving there the deceased attacked and struck the defendant with the large stick exhibited in evidence (which was shown to be a deadly weapon), then such act on the part of deceased, before any act was done by either of the parties in pursuance of the agreement to fight a fist fight, showed on the part of the deceased an intention to abandon the agreement to have a fist fight, and to murder the defendant, and if defendant struck the deceased and killed him under such circumstances such killing would be self-defense, inasmuch as the act of the deceased in making such murderous assault was a distinct and independent attack and an assault to murder not contemplated by the parties and not contemplated by the terms of the proposed fist fight, but the same would constitute a specific and independent act disconnected from the former agreement which was only a misdemeanor, such attack or assault by deceased, being an independent felony, and under such circumstances the defendant's act would be self-defense and entirely justifiable."
And this is the question of difficulty in the case. We think that while quite plausible, that appellant's contention is unsound and fallacious. That our views may be understood, it may be well to recur to some of the authorities in this State on this subject. Among the earliest and best considered cases in the reports on the law of mutual combat is the opinion of Judge Hurt in the case of Williams v. State, 25 Texas Crim. App., 216. Discussing the charge there given and as illustrating by examples the law of mutual combat, it is said:
"Upon the subject of mutual combat the learned judge instructed the jury as follows: `The law does not permit men to engage in mutual combat, and when two or more persons engage willingly in mutual combat, each is responsible for the consequences of his own act.' As law to be applied to the case, or any phase of the case, the above proposition contains no light for the jury. Let us suppose that A and B willingly entered into a combat, neither intending to kill the other, and A inflicts great injury upon B, and is killed by B. Now B would be responsible for the consequence of his own acts, it is true; but of what offense would B be guilty if he kills A under the passion produced by the great injury? The answer to this question would furnish practical information to the jury. Propositions of law may instruct the jury in some instances, but the above proposition, though correct, can not aid the jury in arriving at the offense committed by B.
"If B is the aggressor, produces the difficulty, assaults A, but does
not intend to kill, and A inflicts injury upon B, and B, under the passion aroused by the injury, kills A, he would be guilty of manslaughter. (Art. 597, Penal Code.) Hence, if B and A enter willingly into a combat, without intending to kill, and A inflicts great injury upon B, and B kills A in a passion caused by the injuries, B would be guilty of manslaughter, both being aggressors."
The same doctrine is in substance announced in the case of Foreman v. State, 33 Tex.Crim. Rep.. Judge Davidson, who wrote the opinion of the court in that case, uses this language: "Deceased proposed to appellant to retire to the `woods' and settle their grievances. The defendant accompanied him to the designated place, seized a large stick, and with it slew his adversary. The deceased was unarmed, having left his gun at the house. The evidence clearly discloses that the combat was to have been with arms or weapons. This being the case, self-defense was eliminated from the case, and in view of the fact that the conviction was for manslaughter, with the minimum punishment assessed, we are unable to appreciate any bearing this evidence could have had upon the case favorable to the defendant. Pruitt v. State, 30 Texas Crim. App., 156." Further along in discussing the matter and applying the law of mutual combat to the facts of the case, he says: "Whether such killing is murder in either degree or manslaughter must depend upon the facts attendant upon the case on trial. It is not matter of law in either case. The condition of the mind, in such state of case, is not fixed by law, but must be ascertained from the facts adduced in evidence. Whether the killing occurs in mutual combat or otherwise, the nature, character and degree of such homicide will depend upon the condition of the mind of the slayer; and this must be ascertained from the circumstances of the particular case. This condition of the mind, whether cool or sedate, or inflamed and excited, or aroused to such sudden passion as to render it incapable of cool reflection, induced thereto by an adequate cause, is not to be determined by the law as matter of law, but is to be solved from the facts by the jury. These were general remarks by the court. Following these remarks the court properly applied the law to the facts of the case. Was it possible for the remarks of the court to have injured appellant? That they did not affect the jury is evident, because manslaughter, and not murder, was the offense found, and no honest jury could have acquitted or found less than manslaughter under the circumstances of this case. Self-defense and the law of retreat are not issues in this case under the evidence before us."
Again, in Carter v. State, 37 Tex.Crim. Rep., after some reference to the facts, Judge Davidson, speaking for the court, on the instructions which the jury should receive in respect to the second theory, that is, mutual combat, says: "That the defendant entered into a mutual combat — a simple assault and battery — and, being assaulted by his adversary and others with chairs, he resorted to a
deadly weapon. The court should have instructed the jury upon this theory, to wit: a mutual combat without intending to do serious bodily injury, and resorting to deadly weapons when more force was used by his adversary than he originally contemplated. The result of such a state of facts would be manslaughter."
This same rule is also clearly recognized in Stringfellow v. State, supra, where Judge Davidson says: "If this was a challenge and an acceptance to fight with fists or engage in an ordinary personal encounter, without intending to kill, the offense would not be greater than manslaughter."
The evidence in this case raised the issue, as we believe, of mutual combat. It may be true that where there is a mere agreement to fight with the fists followed by no subsequent act in furtherance of such agreement, and thereafter one of the parties to the quarrel assaults his adversary with a deadly weapon, that the party so assaulted would, under the law, be allowed to protect himself and claim his perfect right of self-defense. However that may be, that doctrine can have no application here. In this case the evidence shows or at least justifies the conclusion that there had been an agreement to fight, and that the parties in pursuance of such agreement had left the house and were going to a more private place where the fight could be had without interference or interruption. This the law treats as a part of the combat, recognizing it as an overt act in furtherance and as part of the combat. There must in every case of mutual combat be a beginning of the fight by some one of the persons engaged in it. It would not be claimed in this case that if there was an agreement to fight by the parties, a leaving of the house to fight, that the mere fact that one struck the other before giving notice in words of his intention so to do, that his adversary would be protected under the ordinary rule of self-defense. The fact that if the parties had agreed to fight with deadly weapons with a deliberate and set purpose, and one of them first draws his weapon and fires and either missing or not slaying his adversary, is in turn by him killed, it could not be claimed that the person killing acted in self-defense, but in such case, if the agreement was deliberately made, the offense would be murder in the first degree. And so it would seem under the authorities above cited that if the parties agreed to fight, not with deadly weapons, but one of them subsequently attacks his adversary with such means as that to save his life he must resort himself to the use of a deadly weapon, he does not go acquit, but if there is raised in his mind that degree of terror, rage or resentment, recognized by the law, the offense is manslaughter. The books have not, so far as our examination has discovered, written out at length the reasoning on which this rule is based, but it must be, as we believe, on the theory and proposition that both parties are, when the agreement to fight is made, and when they have done some act or acts in furtherance of such agreement, engaged in a violation of the law, and are culpable
in some degree for any overt act done in furtherance thereof. Again, we think the law must take some account of the fact that even if two persons do agree to fight in a given manner, that either wickedly designing to take some advantage of the adversary or moved by uncontrolled passion, one of them may strike with a deadly weapon, and that in considering their culpability, some knowledge of this fact must be assumed and presumed. So that we believe the charge of the court in respect just considered is not only not objectionable, but is a fair and correct submission of a most difficult question.
Again, special objection is made of so much of the 34th paragraph of the court's charge above quoted as instructs the jury that if after the parties had gone some distance, they stopped, "and the defendant decided to abandon the combat and the agreement to have a combat, and so stated to the deceased, and started to turn and leave the deceased, and the deceased then struck or attacked the defendant with the stick," and that in defense of himself against such attack the defendant killed the deceased, or they had a reasonable doubt the killing occurred under such circumstances, that he would be justified. This charge is complained of because if appellant had abandoned the combat or agreement to have a combat, his right of self-defense would be perfect, and he would not be required to notify deceased of such abandonment or to start to turn and leave before his right of self-defense would be perfect. In determining the accuracy of every charge, the court should always do so with reference to the facts of the case, and consider the charge of the court as a whole. As will appear from the statement of the case given above, appellant testified that he told deceased that if he wanted to do what was right there would be no trouble, and deceased then asked him what he wanted to do, and that he told him he wanted nothing except for him to keep his calves out of the field; that deceased said he was perfectly willing to do that, and thereupon appellant said: "When he told me that I then said to him that I was in a hurry and turned and shut up my knife and put it in my pocket and started to walk off," and that when he made a step to the edge of the road that he struck him with a big stick. It will be noted, therefore, that the charge of the court follows accurately and almost literally the testimony of appellant, and submits the issue of abandonment as stated by him. The charge is to the effect that if the jury should find, not that he had in factabandoned the difficulty, but if he had decided to abandon the combat and agreement to have a fight and so stated to deceased and started to turn and leave him, and deceased then struck him, that his right of self-defense would be perfect. We can imagine many cases where this charge would be erroneous. Where there has been in fact an abandonment of a prior agreement of mutual combat, it is not, we think, essential that one's adversary must, at the peril of his life, be notified of such abandonment, but where, as in this case, the evidence of abandonment raises the issue not only of a decision so
to do, of notice of that fact, and of a step taken to leave the presence of such adversary, and the issue is submitted, applying the law directly to the facts of the case, we can not concede that such a charge is error. It would perhaps have been better if the court in this case had instructed the jury that if notwithstanding they believed that there had been an agreement for mutal combat, if appellant had abandoned same, that his right of self-defense would not be impaired. Still we think where the court does submit the very facts of the case to the jury, that it can not be said, if error, to be such error as would either justify or require this court to reverse the case. Indeed, it might be claimed with some reason that the jury would better understand and comprehend such charge as was here given than one that abstractly or generally submitted the issue. The case of Welch v. State, 57 Tex.Crim. Rep., 122 S.W. Rep., 880, was one which involved the same principle, and the following extract from that case seems appropriate here:
"It will thus be seen that under this instruction, if the jury believed or had a reasonable doubt in their minds that while defendant and deceased were discussing the matter about the purchase of a pistol, appellant took out his money purse, and thereupon deceased grabbed same, or knocked it out of his hands, and thereupon the defendant remonstrating with or asking him (deceased) what he meant, the deceased rushed upon defendant and struck at him with a knife, and appellant immediately ran to his horse, seized his gun and shot and killed Tanner, then in case the jury should so find, or if they had a reasonable doubt that such were the facts, or as to the fact that deceased so attacked defendant with a knife, they would acquit him. This charge applies the very facts relied upon by appellant. It is true, it does not in terms instruct the jury that appellant had the right to kill deceased if he believed that he was attempting to rob him; but it does instruct the jury that if the facts touching said robbery testified to are true, then appellant should go acquitted. It also, in another paragraph, instructs the jury that if deceased had picked up a rock, or defendant believed that he had, and was in the act of making an attack upon him, or if it so appeared to him at the time, and he shot deceased, he should be acquitted. This, we think, was quite as favorable a charge to appellant as he was entitled to receive under the law. The issue in fact of the robbery was based upon all the things done and said at the time. An instruction with reference to robbery disassociated from the facts would have been unnecessary and improper. The issue of robbery, if gathered at all from the testimony, is to be gathered from all the facts testified to by appellant. We think the charge, when examined and measured by the facts in evidence, contained such a submission of the case that the jury could not have misunderstood appellant's rights, and could not have been misled thereby, but, on the contrary, when tested in its entirety, stripped of all legal phraseology, in a plain matter of fact
way, directed the jury that if appellant took his money purse out of his pocket, and deceased grabbed at it or knocked it out of his hands, and when appellant remonstrated with him, and asked him what he meant, deceased rushed upon him with a knife, and appellant immediately ran to his horse, seized his gun, and shot and killed Tanner, he should be acquitted."
The testimony of abandonment in this case all rested on and was raised by appellant's testimony. His testimony raised the issue of their settlement of their differences; his testimony, and his alone, raised the issue that he said to Snider that he was in a hurry, and his testimony, and his alone, raised the issue that he turned, shut up his knife, put it in his pocket and started to walk off. It is wholly unlikely that the jury would have believed one of these statements without believing the other, and where the defensive matters is submitted almost in the language of the evidence raising the defense, it would seem to be sufficient.
3. Again, it is complained there was error in the charge of the court on the subject of manslaughter. The court instructed the jury to this effect: That an assault and battery by deceased causing pain and bloodshed was adequate cause to reduce the offense if unlawful to the grade of manslaughter. That this charge was not technically accurate has been many times held. The language of the statute is: "An assault and battery by deceased causing pain or bloodshed is in law an adequate cause, and it is not required that both pain and bloodshed should be caused by the assault and battery, that either is sufficient." Foster v. State, 8 Texas Crim. App., 248; Tickle v. State, 6 Texas Crim. App., 623; Hill v. State, 8 Texas Crim. App., 142; Bonnard v. State, 25 Texas Crim. App., 173; Childers v. State, 33 Tex. Crim. 509; Williams v. State, 15 Texas Crim. App., 617; High v. State, 26 Texas Crim. App., 545; Spivey v. State, 30 Texas Crim. App., 343. Since, however, appellant was found guilty of manslaughter and such finding of necessity was a finding adverse to his plea of self-defense, such error becomes utterly immaterial. Hobbs v. State, 55 Tex.Crim. Rep..
4. The other matters relate to complaints of the charge of the court with reference to the issue of self-defense. This charge we have carefully examined, and we think this issue was fairly submitted to the jury, and it is unnecessary to set the matter out in detail here.
A careful inspection of the entire record convinces us there was no such error of substance as injured appellant and for which we would be justified in reversing the judgment of conviction. Considered altogether, the case seems to have been well tried, and appellant was given the benefit of a fair submission of every issue arising under the evidence. The testimony was, we think, sufficient if believed to justify the conviction.
It is ordered that the judgment of conviction be and the same is hereby affirmed.
Affirmed.
ON REHEARING. May 10, 1911.