
    LEWELLEN v. STATE.
    (No. 6406.)
    (Court of Criminal Appeals of Texas.
    Jan. 18, 1922.)
    L Homicide &wkey;>l 16(4) — Principie of apparent danger as applied to self-defense stated.
    One who does an act under a reasonable apprehension of loss of life or serious bodily harm founded on the movements of his adversary is not to be held culpable because it may afterwards appear that there was no actual danger.
    2. Homicide <§=300(3) — Instruction on apparent danger held sufficient under the evidence.
    In a prosecution for murder a charge on self-defense, which included the following language as to apparent danger: “And it is not necessary that there should be actual danger, providing he acted upon a reasonable apprehension of danger as it appeared to him, viewed from his standpoint at the time,” held sufficient under the evidence.
    3. Homicide <&wkey;300 (8) — Charge on provoking difficulty held demanded by the evidence.
    In a prosecution for murder, evidence held sufficient to require a charge on the law of provoking a difficulty.
    4. Homicide &wkey;>300(9) — Charge on law of imperfect self-defense not required under the evidence.
    In a prosecution for murder, evidence 'held not such as to require a charge on the law of imperfect self-defense on the theory that in provoking the difficulty the accused’s intent was not to kill but to do the deceased some lesser injury.
    5. Homicide <§=300 (8) — Evidence held to require charge on statutory presumption arising from use of knife by deceased.
    In a prosecution for murder in which there was evidence that deceased approached accused with a butcher knife having a sharp-pointed blade nine inches long, it was error not to charge on the presumption created by Penal Code, art. 1106, providing that, where a homicide takes place to prevent murder, if the weapons used by the party making the attempt are such as would have been calculated to produce that result, it is presumed that the person so using them designed to inflict injury.
    6. Witnesses <&wkey;3!8 — Testimony supporting character of witness held not admissible, where witness not impeached.
    In a prosecution for murder it was not error to exclude testimony supporting character of material witness for accused, where such witness was a citizen in the county where homicide took place and in which the trial was had, though witness was a stranger to the jury, and state on cross-examination attempted to show that he was not an eyewitness to the homicide and laid a predicate for his impeachment, but no impeaching evidence was introduced. .
    7. Homicide <&wkey;300 (9) — Charge on relative strength of parties not required.
    In a prosecution for murder where self-defense was pleaded, evidence held not such as to require a charge on the relative strength of the parties.
    '8. Criminal law <§=857(I) — Receipt by jury of evidence during retirement improper.
    It is error for the jury to receive evidence prejudicial to accused during their retirement.
    Appeal from District Court, Bell County; M. B. Blair, Judge.
    John Lewellen was convicted of murder, and he appeals.
    -Reversed, and cause remanded.
    See, also, 89 Tex. Or. R. 57, 229 S. W. 326.
    DeWitt Bowmer and W. W. Hair, both of Temple, for appellant.
    Lewis H. Jones, Dist. Atty., of Belton, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for murder; punishment fixed at confinement in the penitentiary for a period of 99 years.

The homicide took place in the city of Temple, Bell county, Tex. Appellant was a resident of that county. He was awaiting repairs on his automobile and intended to go to Rockdale, in Milain county. He fell in with three acquaintances, Caldwell, Joyce, and Lanham, and they went together into the establishment of the deceased.

What occurred, as related by the state’s witnesses, is, in substance, this:

Chudej, an employee of the deceased, was in the building. He saw the appellant, Homer Joyce, and another, enter, and soon after they entered he heard Homer Joyce use the words “son of a bitch.” Sandwiches were ordered, and while Chudej was preparing them, the deceased was present, and after the words “son of a bitch” had been used several times, the deceased, looking at the appellant and Homer Joyce, said, “You ! are not going to call anybody a son of a bitch in this place,” whereupon the appellant said, “You are a son of a bitch,” to which Zurovec replied: “I am not a son of a bitch; If I am, what are you; one too?” Appellant reached for the glasses which were near the coffee urn, but Zurovec got them and set them back out of his reach. Appellant then turned and said, “I guess I will take a leak before that man leaps on me,” and started towards the front door, when he was told by the witness that there was a toilet in the back end of the building; that about a-minute and a half he returned, drew a pistol, and said, “Who said I was a son of a bitch?” and shot at Zurovec.

About the same time that the firing began, Joyce threw a mustard glass at Zurovec. The deceased made no demonstration and did not have any knife or other weapon in his hand at the time the fifing began. He fell a short distance out of the building. Two wounds were inflicted upon him, one shot passing through the left arm; the other entered near the spinal column and passed through the body, coming out near the right nipple.

Appellant’s version was that on entering the building, in talking to Homer Joyce, he used the words “son of a bitch,” referring to the automobile which he was having repaired and which was giving him trouble; that the deceased approached appellant'and accused him of calling the deceased a son of a bitch and ordered him out of the building. Appellant denied that in using the term he referred to the deceased, but the deceased, having a knife in his hand, persisted in ordering him out and remarked: “If you don’t get out, I will show you.” Appellant reached for the glass which was setting on the counter, but the deceased got it, and the appellant left because he was ordered out.

At the time of appellant’s departure, Will Eanham, Luther Caldwell, and Homer Joyce, and two other men remained in the building. Appellant had no pistol at the time, but went to the premises of Harry Shanklin and took possession of Shanklin’s pistol, with the intention of going to Rockdale and with no intention of having further trouble with the deceased. Appellant, however, returned to the deceased’s place of business to see whether his companions were ready to go. As he entered, he saw some one throw at the deceased, and the deceased said to him, “You called me a son of a bitch,” at the same time approaching. Appellant denied that he had done so, and the deceased repeated the accusation, saying: “Get out of here! You called me a son of a bitch.” Appellant said that—

“Then he ran at me with the butcher knife, and I pulled my gun and shot as quick as I could and as fast as I could.”

The evidence is set out in greater detail in the companion case of Joyce v. State, reported in 234 S. W. 896.

The court’s charge on the law of self-defense is criticized because, as construed by the appellant, it limited- his right of self-defense to an actual attack. Whether that is the correct construction of the charge may be debatable. Assuming that it was, however, it would not be error unless there was evidence upon which the theory that he acted upon apparent danger could be founded. In addition to the testimony of the appellant to which we have adverted, the witness Lanham, describing the occurrences taking place before the appellant left the premises, relates them in substantially the same manner as appellant. He describes them thus:

“He (deceased) said, ‘That is all right, get out,’ and started Between this opening that was there between the counters. At that time, he had a knife in his hand. Just as he said, ‘Get out of here,’ he drew the knife around in his hand, something like this (illustrating), and as he said that, he advanced toward the opening-which was in the general direction of -where John Lewellen was.”
“About the time that Zurovee was coming toward Lewellen with the drawn knife in his hand, Lewellen shot. The best I can remember, there was two shots, and then something like a pause, and then three more, four or five-shots altogether.”

The witness, on cross-examination,, said:

“He had a big butcher knife in his hand, and it looked to me like he was fixing to jump on John Lewellen. Zurovee was coming-through' the opening between the counter down next to the front of the building. * * * The-Bohemian had the knife in his hand at the time the shot was fired; he looked to be about the middle of this opening, coming kind of toward John Lewellen. I judge Lewellen was about four feet from Zurovee at the time the-first shot was fired.”

According to the state’s testimony, the knife did not figure in the transaction at all. According to the testimony of the appellant and his supporting eyewitness, as we interpret it, the deceased, with the threat upon, his lips and a butcher knife in his hand, was advancing upon the appellant in a menacing attitude, and was in striking distance at the time the shot was fired.

The principle underlying the doctrine of apparent danger, as applied to the law of self-defense, is that one who does an act under a reasonable apprehension of the loss of life or serious bodily harm, founded on the movements of his adversary, is not to-be held culpable because it may afterwards-appear that there was no actual danger. This evidence, it occurs to us, reveals a demonstration upon the part of the deceased passing the point of preparation for an attack and to present a real situation demanding action upon the part of the appellant for his own protection. This court, in a case-holding that a charge on the law of apparent danger was not required, said:

“We do not understand that, in order that there should be an attack that it must be a completed attack; but it means such progress in the hostile demonstration and movement as to go beyond the mere acts of preparation and such as to demonstrate beyond doubt the beginning and evidence the progress of an actual hostile movement.” Simmons v. State, 55 Tex. Cr. R. 448, 117 S. W. 145. .

See, also, Ruling Case Law, vol. 13, p. 816.

If the conduct and words of the deceased were such as described by the appellant and his supporting witness there was presented a situation which would not justify a reversal of the case upon the complaint made when considered in the light of the evidence and the charge that was actually given.

The charge on self-defense, in paragraph 13, in an abstract manner, stated the principles, using the following language:

“And it is not necessary that there should be actual danger, providing he acted upon a reasonable apprehension of danger as it ap; peared.to him, viewed from his standpoint at the time.” •

In paragraph 14 the jury is told that if they believe that at the time the shot was fired the “deceased was making or about to make an attack upon him,” or “if they had a reasonable doubt thereof, which from the manner and character of it, caused him to have a reasonable expectation or fear of death, or serious bodily injury, etc.” See Godwin v. State, 39 Tex. Cr. R. 404, 46 S. W. 226; Simmons v. State, 55 Tex. Cr. R. 448, 117 S. W. 141; Cavil v. State, 25 S. W. 628; Rodriquez v. State, 71 Tex. Cr. R. 108, 158 S. W. 537; Coker v. State, 22 Tex. App. 20, 2 S. W. 615; Ellison v. State, 34 S. W. 945.

The evidence, in our opinion, justified the charge on the law of provoking the difficulty. It was appellant’s theory that he fired to protect himself from an attack by the deceased. There is evidence that immediately before the attack, the appellant referred to the previous encounter in which insulting epithets had been exchanged and in which, according to appellant, he had been by the deceased ordered out of his house. If the deceased made the attack described by the appellant, the evidence justified the inference that it was brought about by the ap-pellapt’s conduct and words. The things that took place in the house of the deceased a short time before the appellant returned thereto were available to the jury in interpreting the subsequent acts of the appellant. Evidence was not wanting, we think, to support the inference that the appellant, incensed by the first encounter, armed himself, returned to the premises which he had left upon the order of the deceased, and referred to the former altercation for the purpose of causing the deceased to attack him and with the intent, when the attack was so made, to shoot and kill the deceased, and that at the time of the homicide he acted in pursuance of this design. The soundness of this conclusion, we think, is illustrated in the decisions of this court. McGrew v. State, 49 S. W. 229; Bateson v. State, 46 Tex. Cr. R. 46, 80 S. W. 88; Coleman v. State, 25 S. W. 772; Tardy v. State, 47 Tex. Cr. R. 444, 83 S. W. 1128; Cornelius v. State, 54 Tex. Cr. R. 186, 112 S. W. 1050; Barstado v. State, 48 Tex. Cr. R. 255, 87 S. W. 344; Taylor v. State, 47 Tex. Cr. R. 122, 80 S. W. 378, 122 Am. St. Rep. 675; Bice v. State, 55 Tex. Cr. R. 533, 117 S. W. 163.

We discern no evidence which rendered it incumbent upon the court to instruct upon the law of imperfect self-defense, on the. theory that in provoking the difficulty the appellant’s intent was not to kill but to do the deceased some lesser injury. If the jury believed that the appellant intentionally used means reasonably calculated to cause the deceased to attack him in order that he might use the attack thus provoked as an excuse for injuring the deceased, there is no evidence, so far as we are aware, which suggests that the injury he intended to inflict was other than serious bodily injury or death. The kind of weapon that he chose and the manner in which he used it apparently rebut any intent save that described. Keeton v. State, 59 Tex. Cr. R. 316, 128 S. W. 413; Thumm v. State, 24 Tex. App. 702, 7 S. W. 236.

The court, in submitting the converse of the state’s theory in the charge on provoking the difficulty, after telling the jury the consequences of killing the deceased after appellant had intentionally and by suitable means provoked the difficulty, for the purpose of killing, uses the following expression:

“Unless you believe from the evidence that the said John Lewellen did not intentionally seek and bring on the alleged difficulty with the intent to kill the said John Zurovee.”

This is criticized on the weight of the evidence. Upon another trial, the charge should be so framed as to obviate this objection. It was doubtless the idea of the court to inform the jury that although the appellant may have used words or been guilty of conduct which provoked the difficulty, he would not forfeit his right of self-defense unless his words or acts were intended to bring on the difficulty in order that he might kill the deceased.

In article 1106 of the Penal Code, it is provided that where a homicide takes place to prevent murder, if the weapons used by the party making the attempt are such as would have been calculated to produce that result, it is presumed that the person so using them designed to inflict the injury. A charge on this presumption was not embodied in the court’s charge, and an exception to it was reserved upon that ground. We regard the complaint as well founded. As indicated hereinabove, thé trial court treated appellant’s testimony describing the attack by the deceased as using a “butcher knife.” By other evidence in the case, the knife is described as one with a sharp point and with a blade about nine inches long. We understand the statute to be that where one is attacked by an assailant who uses in the attack a weapon calculated to produce death in the manner used, in measuring the rights of an accused who defends against such an attack, the law presumes that his assailant intended to kill him. The intent of the assailing party is not a question of fact for the jury. (Ward v. State, 30 Tex. App. 687, 18 S. W. 793), but if the jury determines that the proof establishes the fact that he was making the attack using the weapon described, the presumption of law is that his intent was to kill (Clark v. State, 56 Tex. Cr. R. 295, 120 S. W. 179). In a ease where such an issue is presented, the duty upon the trial court to charge the substance of the statute mentioned appears imperative. McMichael v. State, 49 Tex. Cr. R. 424, 93 S. W. 723; Clark v. State, 56 Tex. Cr. R. 295, 120 S. W. 179. Many illustrations of this rule are found where, as in the present case, the evidence disclosed' an attack with the knife. Williams v. State, 65 Tex. Cr. R. 437, 144 S. W. 620; Hudson v. State, 59 Tex. Cr. R. 650, 129 S. W. 1125, Ann. Cas. 1912A, 1324; Cooper v. State, 48 Tex. Cr. R. 36, 85 S. W. 1059. The law fixes no arbitrary terms in which the instruction shall be given to the jury, but the obligation to give the charge is not met by the charge ordinarily given on the issue of self-defense. In all such cases, the accused defends against the attack or threatened attack, as viewed from his standpoint at the time. Article 1106, however, is a definite element in the law of self-defense and where the facts bring the case within the purview of this statute, • its substance should be charged. Suggestions to the contrary in Ward v. State, 70 Tex. Cr. R. 393, 159 S. W. 272, Alexander v. State, 63 Tex. Cr. R. 103, 138 S. W. 721, and some other cases are out of harmony with the statute and its construction by the great weight of authority. We have recently had occasion to review various decisions of this court upon the subject in the case of Briscoe v. State, 236 S. W. 991, not yet [officially] reported. Under the evidence in the instant case, the trial court was not warranted in refusing, in response to appellant’s exception, to amend his charge in the respect mentioned.

Lanham, an important witness for the appellant, was a stranger to the jury, and his testimony coincided with that of the appellant but conflicted with that of the state’s witnesses. The theory of the state’s counsel appears to have been that Lanham was not, in fact, an eyewitness to the homicide, and in his cross-examination the idea that ihis was the view of state’s counsel was, by innuendo, made apparent. Predicate was laid for his impeachment, but no impeaching testimony was introduced. He appears to have been a citizen of the county in which the homicide took place, and in which the trial was had. We do not regard the case to come under the rule that is asserted in Phillips v. State, 19 Tex. App. 158, where, under exceptional circumstances the court received testimony supporting the character of the witness who was a stranger in the county. In the instant case we think the court did not err in refusing to receive such testimony. The cases supporting Phillips v. State, supra, and distinguishing it, are found in Rose’s Notes on Texas Reports, vol. 5, pp. 483 and 484. The instant case, we think, comes within the purview of Warren v. State, 51 Tex. Cr. R. 599, 103 S. W. 888; Morrison v. State, 37 Tex. Cr. R. 607, 40 S. W. 591; Murphy v. State, 40 S. W. 978.

The circumstances of the homicide are not such as to call for a charge on the relative strength of the parties. Vann v. State, 45 Tex. Cr. R. 434, 77 S. W. 813, 108 Am. St. Rep. 961; Ballard v. State, 160 S. W. 619; Brady v. State, 65 S. W. 521.

There is an assignment in the motion for new trial supported by evidence, upon the subject of receipt by, the jury of evidence prejudicial to the appellant during their retirement. The question is ,one upon which the law is well settled. See Gilbert v. State, 85 Tex. Cr. R. 597, 215 S. W. 106; McDougal v. State, 81 Tex. Cr. R. 179, 194 S. W. 944, L. R. A. 1917E, 930. Inasmuch as the question will not likely arise upon another trial certainly not upon the same evidence, we deem it unnecessary, to enter into an analysis of the testimony in order to determine whether the facts are such as to require a reversal upon that ground.

There were some intemperate arguments. On another trial, counsel, no doubt, will refrain from repeating them. We therefore pretermit any further comment on them.

The judgment is reversed and the cause remanded. 
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