DAVIDSON, Presiding Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-one years.
In the city of Tyler, in one of its must public places, where, by reason of a barber shop, saloon, drugstore and soda fountain, large numbers of people were in the habit of congregating, this killing occurred about 6 o’clock in the evening. Deceased, Griffin, was an employe of Mayer & Schmidt, merchants, being their collector and assistant bookkeeper. About half an hour previous to the homicide deceased approached appellant at about the point where the killing subsequently occurred, and presented for collection a bill for $47. Appellant was entitled to a credit on this account of $4. Deceased had credited it on the books at the store, but had failed to place it on the account. Just what occurred between the parties in regard to this matter is in doubt. The parties were standing close 'together, and Griffin, with his collection book in his hand, was shaking it at Clay, indicating that he was angry. One or two witnesses testify to a vulgar expression by defendant, insulting in its character, to Griffin. Deceased replied, “Yes, I will;” and appellant then slapped Griffin on the left side of his head or face with his
right hand, knocking him over on the sidewalk. He then got on or hold of him, and either rubbed his head on the pavement or bumped it a time or two against it. Some of the witnesses say this produced an abasion; some a blue-loolcing appearance on his forehead, while others state it brought blood. Assuming an erect position, deceased remarked, “Gentlemen, you see the effect of presenting this man a bill.” Dr. Wynne testified, that Griffin and Clay passed a few words about the time Griffin got up. Some one handed him his hat, and he said to Clay, “I will come and see you again,” and Clay said, “All right, bring anybody else you want to from the house.” Another testified, that Griffin said, “I will go and come back and see you.” And Clay said, “Bring anyone else you want to see me.” Griffin said, “I don’t need anyone else with me; I am enough myself.” Clay said, “All right, I will be here waiting for you,” or words to that effect. Parker testified, that when deceased was brusing the dirt from his hat, he pointed his finger at Clay and said, “It is not over,” and Clay said, “That is all right; I will be ready.” Griffin then left. Upon cross-examination he was not so positive about the latter expression; that is, that Clay said he would be ready, but that was his impression; but he knew he said “All right.” Partin testified, that Griffin, after he got up, said to Clay, “I will see you later,” but did not hear Clay make any remark. White testified, that he heard Griffin say, “I will see you again,” but did not hear Clay say anything in reply. There is considerable confusion in the testimony as to what was said by the parties immediately after Griffin resumed his feet. It is conceded that deceased said, “It was not all over;” that he “would see Clay again,” and defendant, in effect, told him “it was all right.” In effect, the conclusion reached from the testimony may be summed up by stating that deceased notified him he would see him again about the trouble just ended, and defendant left it optional with deceased. After making these remarks, deceased went west to the mercantile establishment of Mayer
&
Schmidt, about 185 feet distant. Knight testified, that after deceased left, and while at or near the spot where the difficulty occurred, appellant stated, that he was sorry he had hit that boy, but he had as good as called him a liar, and he ought to have known at the time that if he did that he would not take it. Appellant also stated, “I called him a boy, but he is a man.” Clay would weigh from 200 to 225 pounds; deceased from 115 to 135 pounds—a wiry, active young man, inferior in strength to appellant. Within about ten minutes after deceased left the scene of the first trouble, appellant, in company with Schuh, went east, or in the opposite direction from that taken by deceased, about 650 feet, to the National Saloon, took a drink, and returned to the place where the original difficulty occurred and where the tragedy was enacted. After reaching this point, 'appellant went into what is called the Euby Saloon, called over the phone the workman who was building his house, and talked with him about some matters connected with the house; and then returned to the sidewalk. He went to the edge of it, and turned facing the building, with
one foot in the gutter and the other on the edge of the sidewalk, leaning against or standing by an awning post, shown to be about six inches square, talking to .Bailey. There was a considerable crowd on the sidewalk, when deceased was seen approaching from the west. It seemed the crowd expected a difficulty. Deceased seemed to be looking for somebody, and when he discovered appellant, turned facing him and began drawing his pistol. There is evidence that Some one in the crowd hallooed to appellant, <rLook out, Tom.” It seems that up to this time he had not seen deceased. Looking up, and seeing the movement of deceased, appellant immediately drew his pistol. Deceased was delayed in getting his pistol out by reason of its catching in his clothes, thus enabling appellant to shoot at the same time, if not a little previous to deceased. There were six shots fired, two by deceased and four by appellant. Three shots took effect in the body of deceased, and one in the arm of a bystander. As deceased fell, or just after he fell, and while upon the ground, appellant fired a shot into his prostrate body. It is conceded that deceased at that time was dead. The testimony is very voluminous, but it occurs to us this is a sufficient statement of the facts to bring in review the questions raised upon the charges.
The court submitted the issue of self-defense, but limited it by a charge on provoking a difficulty. He also burdened the right of self-defense with the issue of mutual combat. The theory of the State was that Clay, being physically very superior to deceased, upon slight provocation committed an assault upon him, whereby wounds and indignities, which were calculated to anger and excite him, were inflicted; that-he had reason to believe and was informed by Griffin that he would resent this treatment; that Griffin, with the experience before him of that difficulty, knew he could not cope with Clay in a physical contest, and that he informed Clay he would see him later; and when Clay stated to him that it was all right, he would be ready, etc., that was tantamount to an agreement to meet him in combat at that particular point with deadly weapons. It may be a serious question and very uncertain as to who provoked the first difficulty. But concede to the State its strongest possible contention, that is, that appellant provoked the first difficulty, and was in the wrong, it is certain this difficulty was at an end. The acts and language of both parties demonstrate this, as does all the evidence. Deceased provoked and brought on the second difficulty with deadly weapons. Under these circumstances self-defense revived to appellant. It will be observed that the threat of deceased was a general one, and fixed no time, terms nor place of meeting. It was to be such a meeting as deceased would impose, and left no option with appellant.
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DAVIDSON, Presiding Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-one years.
In the city of Tyler, in one of its must public places, where, by reason of a barber shop, saloon, drugstore and soda fountain, large numbers of people were in the habit of congregating, this killing occurred about 6 o’clock in the evening. Deceased, Griffin, was an employe of Mayer & Schmidt, merchants, being their collector and assistant bookkeeper. About half an hour previous to the homicide deceased approached appellant at about the point where the killing subsequently occurred, and presented for collection a bill for $47. Appellant was entitled to a credit on this account of $4. Deceased had credited it on the books at the store, but had failed to place it on the account. Just what occurred between the parties in regard to this matter is in doubt. The parties were standing close 'together, and Griffin, with his collection book in his hand, was shaking it at Clay, indicating that he was angry. One or two witnesses testify to a vulgar expression by defendant, insulting in its character, to Griffin. Deceased replied, “Yes, I will;” and appellant then slapped Griffin on the left side of his head or face with his
right hand, knocking him over on the sidewalk. He then got on or hold of him, and either rubbed his head on the pavement or bumped it a time or two against it. Some of the witnesses say this produced an abasion; some a blue-loolcing appearance on his forehead, while others state it brought blood. Assuming an erect position, deceased remarked, “Gentlemen, you see the effect of presenting this man a bill.” Dr. Wynne testified, that Griffin and Clay passed a few words about the time Griffin got up. Some one handed him his hat, and he said to Clay, “I will come and see you again,” and Clay said, “All right, bring anybody else you want to from the house.” Another testified, that Griffin said, “I will go and come back and see you.” And Clay said, “Bring anyone else you want to see me.” Griffin said, “I don’t need anyone else with me; I am enough myself.” Clay said, “All right, I will be here waiting for you,” or words to that effect. Parker testified, that when deceased was brusing the dirt from his hat, he pointed his finger at Clay and said, “It is not over,” and Clay said, “That is all right; I will be ready.” Griffin then left. Upon cross-examination he was not so positive about the latter expression; that is, that Clay said he would be ready, but that was his impression; but he knew he said “All right.” Partin testified, that Griffin, after he got up, said to Clay, “I will see you later,” but did not hear Clay make any remark. White testified, that he heard Griffin say, “I will see you again,” but did not hear Clay say anything in reply. There is considerable confusion in the testimony as to what was said by the parties immediately after Griffin resumed his feet. It is conceded that deceased said, “It was not all over;” that he “would see Clay again,” and defendant, in effect, told him “it was all right.” In effect, the conclusion reached from the testimony may be summed up by stating that deceased notified him he would see him again about the trouble just ended, and defendant left it optional with deceased. After making these remarks, deceased went west to the mercantile establishment of Mayer
&
Schmidt, about 185 feet distant. Knight testified, that after deceased left, and while at or near the spot where the difficulty occurred, appellant stated, that he was sorry he had hit that boy, but he had as good as called him a liar, and he ought to have known at the time that if he did that he would not take it. Appellant also stated, “I called him a boy, but he is a man.” Clay would weigh from 200 to 225 pounds; deceased from 115 to 135 pounds—a wiry, active young man, inferior in strength to appellant. Within about ten minutes after deceased left the scene of the first trouble, appellant, in company with Schuh, went east, or in the opposite direction from that taken by deceased, about 650 feet, to the National Saloon, took a drink, and returned to the place where the original difficulty occurred and where the tragedy was enacted. After reaching this point, 'appellant went into what is called the Euby Saloon, called over the phone the workman who was building his house, and talked with him about some matters connected with the house; and then returned to the sidewalk. He went to the edge of it, and turned facing the building, with
one foot in the gutter and the other on the edge of the sidewalk, leaning against or standing by an awning post, shown to be about six inches square, talking to .Bailey. There was a considerable crowd on the sidewalk, when deceased was seen approaching from the west. It seemed the crowd expected a difficulty. Deceased seemed to be looking for somebody, and when he discovered appellant, turned facing him and began drawing his pistol. There is evidence that Some one in the crowd hallooed to appellant, <rLook out, Tom.” It seems that up to this time he had not seen deceased. Looking up, and seeing the movement of deceased, appellant immediately drew his pistol. Deceased was delayed in getting his pistol out by reason of its catching in his clothes, thus enabling appellant to shoot at the same time, if not a little previous to deceased. There were six shots fired, two by deceased and four by appellant. Three shots took effect in the body of deceased, and one in the arm of a bystander. As deceased fell, or just after he fell, and while upon the ground, appellant fired a shot into his prostrate body. It is conceded that deceased at that time was dead. The testimony is very voluminous, but it occurs to us this is a sufficient statement of the facts to bring in review the questions raised upon the charges.
The court submitted the issue of self-defense, but limited it by a charge on provoking a difficulty. He also burdened the right of self-defense with the issue of mutual combat. The theory of the State was that Clay, being physically very superior to deceased, upon slight provocation committed an assault upon him, whereby wounds and indignities, which were calculated to anger and excite him, were inflicted; that-he had reason to believe and was informed by Griffin that he would resent this treatment; that Griffin, with the experience before him of that difficulty, knew he could not cope with Clay in a physical contest, and that he informed Clay he would see him later; and when Clay stated to him that it was all right, he would be ready, etc., that was tantamount to an agreement to meet him in combat at that particular point with deadly weapons. It may be a serious question and very uncertain as to who provoked the first difficulty. But concede to the State its strongest possible contention, that is, that appellant provoked the first difficulty, and was in the wrong, it is certain this difficulty was at an end. The acts and language of both parties demonstrate this, as does all the evidence. Deceased provoked and brought on the second difficulty with deadly weapons. Under these circumstances self-defense revived to appellant. It will be observed that the threat of deceased was a general one, and fixed no time, terms nor place of meeting. It was to be such a meeting as deceased would impose, and left no option with appellant. To have required defendant to leave the place, or refrain from being where the first difficulty occurred, in order to avoid meeting deceased, would have imposed on him the duty of retreating in order to avoid meeting his assailant, if he should return. Their rights on the streets were equal; and he did not lay himself liable to the law of mutual combat by being at a place, or going to a place where the law justified him in going. The
law does not require a party to abandon the streets at the behest of his adversary; nor does it require him to avoid him. Without quoting the charges of the court -in reference to provoking a difficulty, or mutual combat, we are of opinion that neither issue is in this case. There was a clear abandonment of the original difficulty, at least by appellant. The acts of deceased—going to the establishment of his employers, and there arming himself, seeking appellant, and renewing the difficulty, made him clearly the aggressor in the second trouble. Brazzill v. State, 28 Texas Crim. App., 584; Lindsey v. State, 35 Texas Crim. Rep., 164; White’s Ann. Penal Code, sec. 1215. After the abandonment of the difficulty, the rights of appellant under the law of self-defense were perfect and fully restored. See the same authorities. That the court was in error in charging upon mutual combat, and that such charge was not applicable to the facts of this case, see Everett v. State, 30 Texas Crim. App., 682; Brazzill v. State, 28 Texas Crim. App., 584; Lindsey v. State, 35 Texas Crim. Rep., 164; McCandless v. State, 42 Texas Crim, Rep., 31; Ball v. State, 29 Texas Crim. App., 125; Stringfellow v. State, 42 Texas Crim. Rep., 588, 2 Texas Ct. Rep., 232; Schauer v. State, 1 Texas Ct. Rep., 387. A discussion of the terms of the charge on mutual combat and provoking a difficulty is pretermitted because the evidence does not suggest either issue. This view of the case will suggest to the court upon another trial, if it should occur, a proper presentation of the law of the case.
Mansfield testified that shortly after the first difficulty, and about twenty minutes before the last, deceased came where witness was in the bookkeeper’s office in the rear portion of Mayer & Schmidt’s; that witness was a bookkeeper and deceased assistant booklceeper and collector for said firm. When deceased came into the bookkeeper’s office, he went to the rear portion of said office, where there was a desk, in a drawer of which witness had previously seen a pistol which resembled the pistol now shown witness. This was the weapon used by deceased in the difficulty. The witness had not seen this pistol for some time before the killing, and did not see deceased get the pistol that day. That deceased went out of the office and into a closet where there was a wash basin. The district attorney then asked witness if deceased made any request of him. Being assured in the affirmative, he was asked to state it. The answer was that deceased requested him to add up slips or tickets showing the daily sales of the clerks in said store, which was a part of the work assigned deceased. Witness was further asked if deceased assigned any reason for desiring him to add up said slips; and, over objection, was permitted to state that deceased stated he was so nervous he could not do it; that his head hurt him like it would burst. Bill of exceptions was reserved. The exception was well taken. Appellant was not bound by what occurred between these parties, or the reason for any of deceased’s acts or statements at that point. These things could not affect defendant, because unknown to him. Wooley v. State, 3 Texas Ct. Rep., 236; Adam v. State, 3 Texas Ct. Rep., 314; Brumley v. State,
21 Texas Crim. App., 222; Johnson v. State, 21 Texas Crim. App., 206; Ball v. State, 29 Texas Crim. App., 107; Fuller v. State, 30 Texas Crim. App., 559; Gilcrease v. State, 33 Texas Crim. Rep., 619.
Upon the trial a question was raised as to whether the pistol with which appellant did the killing was his own or a borrowed one. The State’s theory was that when he and his friend Schuh left the scene of the first difficulty, and went off towards the Rational Saloon, he secured a pistol from Schuh. It was also a question whether he had the pistol on at the time of the first difficulty or secured it between the first and second difficulty. Defendant had bought a pistol from Adams & Wiley, hardware merchants in Tyler, during the previous March. These merchants kept the number on pistols they bought from Baldwin & Co. of Rew Orleans and sold to their customers. However, it seems the number upon each of two pistols bought by them and sold in Tyler was omitted by Baldwin & Go. in making out their invoice. When this question came up, the sheriff of the county sought Tto trace the pistol for some purpose thought by the State to be material or connected with the case, and requested Adams & Wiley to trace the -matter. They did so. Baldwin & Co. sent them through the mail the information desired. The number of one of the pistols thus sent was the identical number upon the pistol they had sold appellant in March. The State urged various objections to this evidence; and it was excluded. We believe this testimony should have gone to the jury. The State seemed to lay stress upon the fact that defendant may have armed himself between the "difficulties, and that he did so with a borrowed pistol. Appellant’s contention was that it was his own pistol, and that he had it at the time of the first difficulty. In view of another trial, we would observe, if this is an issue, the testimony should be admitted.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.