About 10 o'clock in the night of May 19, 1916, appellant ran down and shot and killed Roy McKinley on the streets of Temple. The State contended, and the proof was amply sufficient to show, that Leon Wilson was a principal with appellant in the killing. Appellant was convicted of murder with his punishment assessed at life imprisonment.
One trial was had in Bell County, which resulted in a mistrial — a hung jury. Later the district judge on his own motion, for ample grounds stated in his order, properly changed the venue to the Criminal District Court of Williamson County, where the trial occurred. The change of venue was clearly authorized under the statute (C.C.P., art. 626), and decisions thereunder. The trial court committed no error on this point as contended by appellant.
Appellant claimed to have been sexually intimate with a married woman, Mrs. Ileen Fehrenkamp from time to time, or most of the time, for three years prior to the time he killed deceased. The day before he killed him he went to Waco to see said Wilson. He tried to get said woman to go with him. She refused. At the time she, with her sister, then Susie Haney, later Murrell, together lived with their parents in Temple. While he and Wilson were together in Waco they wanted said two women to come to Waco and meet them. In effect they agreed to phone them for that purpose. Wilson put in the call and Susie answered. Wilson told her he wanted to talk to Ileen. Ileen refused to talk. Thereupon he talked to Susie and told her that he and appellant
wanted them to come to Waco for said purpose. They refused. Appellant was present with Wilson when he did this talking, and when he failed to induce the women to meet them he called appellant to the phone, who continued the conversation with Susie in substance urging the two women to come to them at Waco as Wilson had done. They refused his solicitation. Appellant objected to said witness, Susie Murrell, testifying to the phone conversation she had with Wilson on this occasion. Her testimony was admissible. Practically, and under the circumstances in this case, it was the same as if appellant had carried on all the phone conversation with Susie himself.
On said night said two women, Ileen with deceased, and Susie with Roy Murrell, whom she married three days later, in one company, attended a skating rink in Temple. The two couples so returning had gotten within about a block of the home of the women. Appellant and Wilson, each armed with a pistol, that night went from Waco to Temple in a jitney and found these women with their escorts said distance from their home. The women, with their escorts, were walking on the sidewalk going home. As soon as appellant saw them he hurriedly got out of the automobile. As soon as they recognized him the women and their escorts ran from him. Appellant and Wilson followed them with their pistols. Appellant, while chasing them said to deceased, "Run, you son-of-a-bitch." Another witness said he said, "Run, you sons of bitches." Appellant and Wilson both shot at deceased, Wilson at least twice and appellant at least five times, killing deceased. Appellant continued after Ileen, and caught her; and Wilson continued after Susie and caught her. Over appellant's objection the court permitted Susie, in telling what occurred immediately after the killing, to tell what was said by Wilson to her and she to him at the time. All this testimony by her was clearly res gestae of the killing and admissible, as was held by the trial judge.
The court committed no error in permitting Mrs. Fehrenkamp to testify that while forcibly taking her to Belton with him that night that several times during the night appellant said to her that Roy McKinley, or that he, without calling deceased's name, shot first; that because she was scared and afraid not to say so to him that she answered his statement, "Yes"; but that, as a matter of fact, deceased did not shoot first; that appellant shot first. She swore deceased did not shoot at all. Any admission by appellant, as well as any testimony tending to show that he was trying to "fix" said witness to testify what was not true in his behalf was admissible.
Some witness in describing deceased and telling who he was, spoke of him as a boy, to which appellant made no objection. Appellant proved by Mr. Blum that deceased was "a very heavy kind of a man, about the same kind of man as Roy Murrell, probably heavier than Murrell and may be a little taller, too." (Murrell was a witness and testified before the jury.) There was no reversible error in the court's permitting said Blum to testify, and later proving by Mrs. Hawks that
deceased was nineteen to twenty-one years old. It was proved without objection that appellant was a man about thirty-eight years old. Treadway v. State, 65 Tex.Crim. Rep..
After the State closed its evidence the defendant, himself, testified. He next introduced W.S. Hunter of Belton, who testified that he was sixty years old; had lived in Belton for thirty years; been a druggist there for twenty years, and was formerly editor of the Belton Journal; that he had known appellant since he was a boy, and that appellant lived in Beltonmost of that time; that he knew his father for many years. He swore: "I am well acquainted with the defendant's reputation for truth and veracity in Belton, Texas, and it is good." On cross-examination the State asked this witness: "What about his, defendant's, reputation in Bell County as to whether he is a law-abiding citizen?" Appellant objected to this question and the court promptly sustained the objection. The question was not answered. Appellant had not up to this time placed his character in issue except for truth and veracity. Appellant then placed W.B. Smith on the stand, who testified that he was raised in Belton; was bookkeeper for an oil mill there and had been for years; that he had known defendant since he was a small boy. Appellant asked him, "Are you acquainted with defendant's general reputation for truth and veracity in Bell County, among thosepeople who knew him?" He answered, "Yes." Q. "Is it good or bad?" A. "It is good." The State's attorney then asked him, "Now, Mr. Smith, as I understand you, you are confining your testimony on the question of reputation as it affects his reputation for truth and veracity?" Appellant objected to this question. The court overruled his objection. The witness did not answer that question, but the State then asked him this question: "Are you confining your answer as to defendant's general reputation for truth and veracity in the community in which he lives?" The witness answered, "Yes, sir." The appellant again objected to said question and answer and the court overruled his objection. The court qualified the bill by stating that no written charge was presented by counsel for defendant instructing the jury to disregard the questions or the effect of the same. The State did not offer any testimony or ask any other question seeking to show appellant's reputation as to whether or not he was a law-abiding citizen. As contended by the State, the State did not then know, and could not have known, that appellant was not going to put his reputation in this respect in evidence. Nor do the questions, or either of them, indicate that the defendant's reputation in this respect was bad, nor that the witness would not have answered that his reputation in this respect was good. The bill in no way shows that what occurred was material or reversible error against appellant. Huggins v. State, 60 Tex.Crim. Rep.; Belcher v. State, 39 Tex.Crim. Rep.; Phillips v. State,59 Tex. Crim. 534; Harding v. State, 49 Tex.Crim. Rep.; Hart v. State, 57 Tex.Crim. Rep.; Worthan v.
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About 10 o'clock in the night of May 19, 1916, appellant ran down and shot and killed Roy McKinley on the streets of Temple. The State contended, and the proof was amply sufficient to show, that Leon Wilson was a principal with appellant in the killing. Appellant was convicted of murder with his punishment assessed at life imprisonment.
One trial was had in Bell County, which resulted in a mistrial — a hung jury. Later the district judge on his own motion, for ample grounds stated in his order, properly changed the venue to the Criminal District Court of Williamson County, where the trial occurred. The change of venue was clearly authorized under the statute (C.C.P., art. 626), and decisions thereunder. The trial court committed no error on this point as contended by appellant.
Appellant claimed to have been sexually intimate with a married woman, Mrs. Ileen Fehrenkamp from time to time, or most of the time, for three years prior to the time he killed deceased. The day before he killed him he went to Waco to see said Wilson. He tried to get said woman to go with him. She refused. At the time she, with her sister, then Susie Haney, later Murrell, together lived with their parents in Temple. While he and Wilson were together in Waco they wanted said two women to come to Waco and meet them. In effect they agreed to phone them for that purpose. Wilson put in the call and Susie answered. Wilson told her he wanted to talk to Ileen. Ileen refused to talk. Thereupon he talked to Susie and told her that he and appellant
wanted them to come to Waco for said purpose. They refused. Appellant was present with Wilson when he did this talking, and when he failed to induce the women to meet them he called appellant to the phone, who continued the conversation with Susie in substance urging the two women to come to them at Waco as Wilson had done. They refused his solicitation. Appellant objected to said witness, Susie Murrell, testifying to the phone conversation she had with Wilson on this occasion. Her testimony was admissible. Practically, and under the circumstances in this case, it was the same as if appellant had carried on all the phone conversation with Susie himself.
On said night said two women, Ileen with deceased, and Susie with Roy Murrell, whom she married three days later, in one company, attended a skating rink in Temple. The two couples so returning had gotten within about a block of the home of the women. Appellant and Wilson, each armed with a pistol, that night went from Waco to Temple in a jitney and found these women with their escorts said distance from their home. The women, with their escorts, were walking on the sidewalk going home. As soon as appellant saw them he hurriedly got out of the automobile. As soon as they recognized him the women and their escorts ran from him. Appellant and Wilson followed them with their pistols. Appellant, while chasing them said to deceased, "Run, you son-of-a-bitch." Another witness said he said, "Run, you sons of bitches." Appellant and Wilson both shot at deceased, Wilson at least twice and appellant at least five times, killing deceased. Appellant continued after Ileen, and caught her; and Wilson continued after Susie and caught her. Over appellant's objection the court permitted Susie, in telling what occurred immediately after the killing, to tell what was said by Wilson to her and she to him at the time. All this testimony by her was clearly res gestae of the killing and admissible, as was held by the trial judge.
The court committed no error in permitting Mrs. Fehrenkamp to testify that while forcibly taking her to Belton with him that night that several times during the night appellant said to her that Roy McKinley, or that he, without calling deceased's name, shot first; that because she was scared and afraid not to say so to him that she answered his statement, "Yes"; but that, as a matter of fact, deceased did not shoot first; that appellant shot first. She swore deceased did not shoot at all. Any admission by appellant, as well as any testimony tending to show that he was trying to "fix" said witness to testify what was not true in his behalf was admissible.
Some witness in describing deceased and telling who he was, spoke of him as a boy, to which appellant made no objection. Appellant proved by Mr. Blum that deceased was "a very heavy kind of a man, about the same kind of man as Roy Murrell, probably heavier than Murrell and may be a little taller, too." (Murrell was a witness and testified before the jury.) There was no reversible error in the court's permitting said Blum to testify, and later proving by Mrs. Hawks that
deceased was nineteen to twenty-one years old. It was proved without objection that appellant was a man about thirty-eight years old. Treadway v. State, 65 Tex.Crim. Rep..
After the State closed its evidence the defendant, himself, testified. He next introduced W.S. Hunter of Belton, who testified that he was sixty years old; had lived in Belton for thirty years; been a druggist there for twenty years, and was formerly editor of the Belton Journal; that he had known appellant since he was a boy, and that appellant lived in Beltonmost of that time; that he knew his father for many years. He swore: "I am well acquainted with the defendant's reputation for truth and veracity in Belton, Texas, and it is good." On cross-examination the State asked this witness: "What about his, defendant's, reputation in Bell County as to whether he is a law-abiding citizen?" Appellant objected to this question and the court promptly sustained the objection. The question was not answered. Appellant had not up to this time placed his character in issue except for truth and veracity. Appellant then placed W.B. Smith on the stand, who testified that he was raised in Belton; was bookkeeper for an oil mill there and had been for years; that he had known defendant since he was a small boy. Appellant asked him, "Are you acquainted with defendant's general reputation for truth and veracity in Bell County, among thosepeople who knew him?" He answered, "Yes." Q. "Is it good or bad?" A. "It is good." The State's attorney then asked him, "Now, Mr. Smith, as I understand you, you are confining your testimony on the question of reputation as it affects his reputation for truth and veracity?" Appellant objected to this question. The court overruled his objection. The witness did not answer that question, but the State then asked him this question: "Are you confining your answer as to defendant's general reputation for truth and veracity in the community in which he lives?" The witness answered, "Yes, sir." The appellant again objected to said question and answer and the court overruled his objection. The court qualified the bill by stating that no written charge was presented by counsel for defendant instructing the jury to disregard the questions or the effect of the same. The State did not offer any testimony or ask any other question seeking to show appellant's reputation as to whether or not he was a law-abiding citizen. As contended by the State, the State did not then know, and could not have known, that appellant was not going to put his reputation in this respect in evidence. Nor do the questions, or either of them, indicate that the defendant's reputation in this respect was bad, nor that the witness would not have answered that his reputation in this respect was good. The bill in no way shows that what occurred was material or reversible error against appellant. Huggins v. State, 60 Tex.Crim. Rep.; Belcher v. State, 39 Tex.Crim. Rep.; Phillips v. State,59 Tex. Crim. 534; Harding v. State, 49 Tex.Crim. Rep.; Hart v. State, 57 Tex.Crim. Rep.; Worthan v. State,41 Tex. Crim. 387; Baker v. State, 45 Tex.Crim. Rep.; Renn v.
State, 64 Tex.Crim. Rep.; Wyres v. State, 74 Tex. Crim. 32, and other cases.
As stated, appellant killed deceased in Temple about 10 o'clock at night. He then captured said woman, Ileen Fehrenkamp, whom deceased was escorting at the time he was killed, and she swore against her will took her away from the scene to Belton, nine miles distant, walking a considerable part of the way trying to get a conveyance for himself and her from various persons on his route, and finally succeeding in getting a conveyance and reached Belton with her about 5 o'clock the next morning. The court did not err in excluding the testimony by the officer, offered by him, to the effect that when he then surrendered to the officer he said to him: "I have shot a man in Temple; the man fired at me one time before I shot at him." This statement by him could not have been any part of the res gestae, but was self-serving. 1 Branch's Ann. P.C., sec. 90, and authorities there cited.
The court did not err in excluding the proffered testimony of the witness Irvin to the effect that while he and others were with appellant in San Antonio some four or five months before appellant killed deceased that he told of an occurrence between said woman, Ileen Fehrenkamp, and one Bob Murrell, which indicated that said woman on that occasion had been intimate with said Murrell, and that appellant "said nothing and did not express himself as being displeased in any manner, but took the news and information apparently in a good humor and apparently was undisturbed by it." Such testimony was immaterial and irrelevant, too remote and, in effect, a presumption upon a presumption. Maddox v. State, 76 Tex.Crim. Rep., and authorities there cited.
The rule is uniform in this State that "it is not permissible to impeach any witness for truth and veracity by showing that his or her reputation for chastity is not good. Stayton v. State,32 Tex. Crim. 33; Woodward v. State, 58 S.W. Rep., 144; McCray v. State, 38 Tex.Crim. Rep.; McAfee v. State, 17 Texas Crim. App., 139; Conway v. State, 33 Tex. Crim. 327
"; Hall v. State, 43 Tex.Crim. Rep.. The court, therefore, did not err in excluding the testimony of other witnesses offered by appellant, to the effect that the State's witness Susie Murrell's general reputation for purity and chastity was bad.
Evidence that a witness has actually committed a given crime is not admissible for the purpose of impeaching the witness. The court did not err in excluding the testimony of said witness, Susie Murrell, offered by defendant to the effect that some eighteen months before the offense herein was committed she kept company with a married man by the name of Ducky Wilson, and that he kept her during that year; nor that Leon Wilson kept her during the time she went with him. 1 Branch's Ann. P.C., sec. 168, and authorities there cited.
The court gave a charge correctly and sufficiently presenting the issues raised by the evidence. Appellant made several objections to it and
requested several special charges, which were refused. The charge on self-defense was:
"11. A reasonable expectation of death or serious bodily harm will excuse a person in using all force, as reasonably appears to him to be necessary, to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon the reasonable apparent apprehension of danger, as it appears to him from his standpoint at the time, and in such case, the party acting under such real or apparent danger is in no way bound to retreat in order to avoid the necessity of killing his assailant.
"If the jury believe from the evidence in this case that the defendant, Wilbur Flewellen, on the night of the killing, got out of the jitney in which he was riding and called the witness Mrs. Ileen Fehrenkamp for the purpose of talking with said witness and for the purpose of effecting a reconciliation between them, and the jury further believe from the evidence in this case, viewing it from the standpoint of the defendant at the time, that immediately before the shooting of the said Roy McKinley by the said defendant that the said Roy McKinley made a demonstration as if to draw a weapon or did draw said weapon and fire at the said defendant, Wilbur Flewellen, and from the manner and character of said acts, if any, on the part of the said Roy McKinley, the defendant was caused to have a reasonable expectation or fear of death or serious bodily injury, and that the defendant acting under such reasonable expectation or fear, and while such reasonable expectation or fear continued, shot and killed the said Roy McKinley, deceased, or if you have a reasonable doubt as to such facts, then you will acquit the defendant and say by your verdict not guilty."
This charge was a separate paragraph and complete within itself. It amply submitted his claimed self-defense in accordance with his contention and as raised by him.
In another paragraph following this the court charged on provoking the difficulty and told the jury, in substance, that if they believed from the testimony beyond a reasonable doubt that appellant alone, or acting with Wilson, intentionally sought the meeting with deceased for the purpose of slaying him, and having found him did some act, or used some language, or did one or both, with the deliberate intention of producing an occasion and to bring on a killing of deceased, and that under all the circumstances what he did or said, or both, was under the circumstances reasonably calculated to provoke a difficulty, and because thereof deceased attacked him, or them, and he or they killed deceased in pursuance of his or their original design, if any, then the appellant could not justify himself on the ground of self-defense, but such killing under such circumstances would be murder. He then submitted the converse of this and told the jury, in substance, that if they failed to find such state of fact beyond a reasonable doubt then the jury are instructed that his right of self-defense would not be forfeited and he could defend himself, or use such means of defense as the facts and
circumstances indicated to him, viewing it from his standpoint, to be necessary to protect himself from danger, or what reasonably appeared to him at the time to be danger of his life or of serious bodily injury, and in passing upon that issue to give him the benefit of any reasonable doubt. This charge on provoking the difficulty and the converse thereof was a correct charge on the subject and strictly in accordance with the authorities. (Giesecke v. State, 64 Tex.Crim. Rep.; 2 Branch's Ann. P.C., sec. 1953, where many cases are collated on the subject.) But appellant contends the evidence did not raise an issue of provoking the difficulty.
Among other contentions, appellant specially contends the court should have charged on his claimed self-defense that he "had the right to advance on deceased if it reasonably appeared to him at the time, judged from his own standpoint, that it was necessary for his self-protection to advance." This as applicable after he began shooting at deceased. He cites and relies upon Wilson v. State, 46 Tex.Crim. Rep., and Stanley v. State, 44 S.W. Rep., 519. In this Wilson case this court said: "The court also charged with reference to abandonment of the difficulty by deceased. The facts did not call for this charge. The witnesses graphically describe this fight as being `fast and furious after it began' until it was finished. It was a continuous fight from its inception to its close. Some of the witnesses testified that Harrell, deceased, was retreating part of the time but he was fighting all the while; in fact, it seems that in moving around, the parties finally returned to the point where the difficulty began, and at this point deceased fell." Under those circumstances it was held the court should have charged the jury that Wilson "had the right to pursue or follow up this difficulty until all danger to himself had passed." But no such state of facts arose in this case. In said Stanley case it appears deceased had attacked Stanley, and after ceasing his attack then "was seeking to get behind the wall, or get in the dark, and renew the attack." Under those circumstances this court held it was proper for the court to charge, as it did, that Stanley had the right to pursue him if it appeared to him to be necessary for his self-protection. No such state of fact was suggested in this case. Hence, no such charge was called for herein.
The evidence on some of the issues was conflicting and contradictory. Notwithstanding this, when the evidence was sufficient to raise an issue in the State's behalf it had a right, and it was the duty of the court, to submit that issue on the theory of the State's contention, and even though appellant's evidence might have been sufficient to justify the jury to find in appellant's favor on such issue. In stating and discussing the evidence on these issues it is not the purpose to give all the evidence in detail tending to prove or disprove such issue, but only to give, in substance, what the jury, from all the evidence, were authorized to find and believe, and base their verdict upon. Appellant was thirty-eight years old, an unmarried man. From time to time, for a period
extending over about three years before he killed deceased, he claimed he had been criminally intimate with Mrs. Fehrenkamp, a married woman, having her to meet him, with intervals intervening, more or less frequently, for their sexual indulgence. During this period of the liaison he said they had a number of disagreements or estrangements, but that after a time they generally made up and renewed their illicit relations. Latterly, before he killed deceased, he evidently became more infatuated with her and jealous. He demanded she should indulge him alone and extend her sexual favors to no other man, and objected to her going with any other man. About ten days before he killed deceased he had an engagement with her to meet him at Belton, at a certain hour. Instead of meeting him at the time agreed she went grape hunting in the country with deceased, riding on his motorcycle with him. When she did meet appellant an hour or two after the time agreed, he demanded to know why she had not met him at the time agreed. Along about this time, and shortly before, deceased had been going with, and going to see, Mrs. Fehrenkamp. They both lived in Temple, and appellant knew this. She did not want him to know she had been grape hunting in the country with deceased on said occasion, and when he demanded to know why she had delayed her meeting with him she told him first one thing, then another, stating them, had delayed her. Each time when she would tell him these causes of delay he would tell her that that was a lie, and finally he told her she had to tell him the truth. Thereupon she told him she had been with deceased in the country on a grape hunt. He immediately, and because she had been with deceased, as she swore, struck her a violent blow in the face, bruising and blacking her face and eye, which showed for several days afterward, and caused her considerable pain and injury. She then at once ceased all relations with appellant and refused to see him, to talk with him or otherwise communicate with him thereafter, except she, it seems, talked over the phone with him when he tried to get her to go to Waco with him, and also while in company with Mrs. Guinn one time. From that time on until he killed deceased he persistently tried to get her to make up with him. He wrote to her, phoned her, and had Mrs. Guinn, their mutual friend, to see her for him, offering to pay her (Mrs. Guinn) $10 to even get Mrs. Fehrenkamp to see him and offering Mrs. Fehrenkamp to buy for her and her child all clothes they would need for months. As stated above, he tried to get her to go with him to Waco the day before he killed deceased, and while in Waco he had Wilson, and he himself, tried to get her to come to him in Waco. She positively and persistently refused all his overtures and refused to even talk to him over the phone while he was at Waco when he and Wilson both tried to get her to do so, the same day, before he killed him that night. In this phone talk by appellant with Susie Murrell when he was urging her to bring Mrs. Fehrenkamp to him at Waco, Mrs. Murrell swore he said: "You had better come and bring her with you because that other party might not be there to take her any more" — he said, "that other
party might not be there to take her any more." This reference by him to "that other party" could have meant no other than deceased, for the deceased was the only one who was then, and shortly before that had been, taking Mrs. Fehrenkamp anywhere and was the only other man who was shown to have been with her recently. So far as appellant was concerned, Mrs. Fehrenkamp had the right to see and to go with deceased at any time and place she desired, and deceased also, so far as appellant was concerned, had the right to see her and go with her whenever and wherever he pleased. Appellant knew that deceased, and only he, was the direct cause of said woman breaking off her relations with him. Just a short time before he killed deceased, appellant had beat her up because she had been with deceased, as shown. From the State's standpoint and evidence, the jury were authorized to find and believe that appellant was not hunting said woman the night he killed deceased, for the purpose and with the hope of getting her to make up with him, but that at the time, he sought deceased, "that other party," doubtless expecting to find him, as he did, with that woman and to wreak his vengeance upon him because he had taken her away from him, or was the cause of her breaking with him and her refusal to make up with him, and kill him if he got the opportunity.
The evidence further shows that when he and Wilson reached Temple from Waco on their way to Belton, where they had hired the jitney man to take them, he had the driver to drive around in Temple on various streets not on their route to Belton, and he had him to drive slow past the home of said woman, and when they reached that point he ordered the driver to stop, and as he began to do so appellant said, "Well, we don't want to stop here, we will alarm everybody around here; drive up." They then continued to drive slowly up the street on which said woman's home was until he met the women with their escorts about a block from their home. Appellant was on the watch while thus riding along and must have expected to meet these persons, for immediately upon doing so he ordered the driver to stop, but before he could do so he hurriedly got out of the automobile — Wilson did too — and took after them. They discovered him by the time he discovered them and they immediately began to run from him to save their persons and their lives. They so continued their flight with appellant and Wilson in hot pursuit until they ran him some 200 yards and shot him down. Soon after this chase began, according to several eyewitnesses for the State, appellant and Wilson both began shooting at deceased, and continued shooting until they shot him down like a dog and killed him, without deceased saying a word or doing anything whatever to either of them. Appellant swore, however, that he did not shoot at deceased until deceased pulled a pistol and shot at him. The State's eyewitnesses swore that deceased did not shoot at him at any time and that he did not draw any pistol at all. Whether he did or not, the court, in the charge quoted, submitted his claim of self-defense in accordance with his contention
and as raised by him, even if his self-defense was raised at all.
It is hard to conceive of a more aggravated case of provoking a difficulty than the evidence in this case shows occurred. Here deceased was quietly walking along on the sidewalk of a street of Temple, taking Mrs. Fehrenkamp to her home. Her sister, Mrs. Murrell, and her husband were along in the same company. Deceased had the right to be where he was and do what he was doing. He said and did nothing whatever to appellant. Appellant had no right whatever to take after deceased and Mrs. Fehrenkamp and run them down, whether for the purpose of talking to her or not; or for the purpose of capturing said woman and forcibly taking her away from deceased, as she swore he did, just after he had — and it was a part of the same transaction — killed deceased. He chased deceased and said woman for about 200 yards before he killed him but began shooting at him some considerable distance before he finally succeeded in killing him, his bullets striking deceased three times before he succeeded in shooting him down. There can be no particle of doubt that from the unquestioned facts of this case the deceased had the right to draw a pistol and shoot at appellant and Wilson, or either, and if he had done so it would unquestionably have been in his self-defense. Deceased was the person on this occasion who had a right to defend himself by shooting at and killing appellant or Wilson, or both of them. So that whether the issue of provoking the difficulty was in this case or not, surely a perfect right of self-defense did not arise in appellant's favor.
The law is as stated in Vernon's Crim. Stats., page 653: "If a person by his own wrongful act brings about the necessity of taking the life of another to prevent being himself killed, he can not say that such killing was in his necessary self-defense; but the killing will be imputed to malice, express or implied, by reason of the wrongful act which brought it about, or malice from which it was done. A person can not avail himself of a necessity which he has knowingly and wilfully brought upon himself? A large number of decisions of this court directly in point so establishing the law is cited. See also 2 Branch's Ann. P.C., section 1953, where he lays down the same doctrine and cites many cases. See also Thurman v. State, 24 Texas Crim. App. 700; Davis v. State, 81 Tex.Crim. Rep., 196 S.W. Rep., 522.
Under the law, and the facts and circumstances of this case, the court did not commit reversible error in submitting the question of provoking the difficulty and the converse thereof in the terms he did.
The judgment will be affirmed.
Affirmed.
ON REHEARING. January 18, 1918.