
    MARTINEZ v. STATE.
    (No. 4568.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.)
    1. Homicide <&wkey;300(7) — Self-Defense — Instruction — Pbovoking Difficulty.
    In a prosecution for murder, the fact that defendant may have struck the first blow in the difficulty with deceased will not justify a charge on self-defense, qualified with a charge on provoking the difficulty (Vernon’s Ann. Code Or. Proc. 1916, art. 735, note 66), in the absence of evidence of intent to bring the difficulty on to provoke an attack in which defendant intended to kill or injure deceased.
    2. Criminal Law <&wkey;1099(5) — Appeal—Bill of Exception — Filing after Term.
    Bill of exception, disclosing the facts on which rests the contention that the jury received evidence in its retirement, not having been filed during the term, cannot be considered on appeal.
    Appeal from District Oourt, Bee County; F. G. Chambliss, Judge.
    Pancho Martinez was convicted of manslaughter, and he appeals.
    Judgment reversed, and cause remanded.
    Dougherty & Dougherty, IT. S. Bonham, J. F. Odem, and B. D. Tárlton, Jr., all of Bee-ville, for appellant. E. B. Hendricks, Asst. A tty. Gen., for the State.
   MORROW, J.

Appellant was charged with murder and convicted of manslaughter.

He stabbed with a knife and killed Sil-berio Ornelas on December 25, 1915. Appellant and deceased were acquaintances and with others had been drinking whisky during the day, and, according to appellant’s statement, deceased late in the evening called appellant aside and asked him to give him a drink of whisky. Appellant denied that he had any; deceased used insulting language toward and struck appellant; appellant seeing a knife in his hand caught it and took it away from him and-deceased drew another out of his pocket, and while opening it or attempting to open it appellant stabbed him, using the knife he took away from deceased. There was no evidence of any previous quarrel or any motive for the homicide other than that growing out of the affray in which the homicide took place. The only other eyewitness was a boy by the name of Shelton, who was passing the place of the homicide and saw the men, neither of whom he knew, talking to each other. The witness was some distance away, estimated by him from 50 to 150 yards, and was unable to understand the conversation. To quote from him:

“I seen one man had his hand this way (indicating finger in palm of hand). * * * It looked like he had his finger in his hand this way, and then pretty soon one hit the other one, and then the other one slapped the other’s hat off, and then they went to fighting, and pretty soon one knocked the other down and stabbed him. The dead man was the one that had his finger that way, and they were about 3 feet apart at that time. The dead man had his finger in his hand that way, and was pointing at the other with something in his hand. * * * Pancho [appellant] struck the first lick. * * * Then this one hit the other, and the other one slapped this one’s hat off, and then this one knocked the other down and stabbed him. When he knocked him down he stabbed him in the breast.”

There was evidence of several witnesses tending to show that the knife used by appellant .was a knife made out of a file or something of that kind, and that it belonged to, or had been in the possession of, deceased, and there was evidence that a pocket knife was also found near deceased after the homicide.

The court charged the jury on the law of self-defense, qualifying it, however, with the charge on provoking the difficulty. Ap>pellant insists that the evidence did not justify this qualification of his right of self-defense. Such charge would have been authorized only in the event that there was evidence that the appellant intended to provoke a difficulty for the purpose of causing the deceased to attack him and thereupon to kill him or do him serious bodily injury; that pursuant to such intention he used means reasonably calculated under the circumstances to bring about that result; that the demonstration or attack by deceased was so brought on and that appellant stabbed him pursuant to his original intent. Branch’s P. C. art. 1138; Vernon’s C. O. P. p. 459, and cases cited. We do not find any evidence of these elements. The evidence indicates that deeased sought the interview, and that appellant joined him with no cause or purpose to bring on a quarrel. Evidence of intent to bring on the occasion to kill deceased appears to be entirely absent. Appellant may have struck the first lick; be may have begun the difficulty, but this would not justify the charge in the absence of evidence of an intent to bring it on for the purpose of provoking an attack in which he intended to kill or injure his assailant. Reese v. State, 49 Tex. Cr. R. 242, 91 S. W. 583; Burnett v. State, 51 Tex. Cr. R. 20, 100 S. W. 381; Thomas v. State, 71 Tex. Cr. R. 387, 160 S. W. 71; Bow v. State, 34 Tex. Cr. R. 481, 31 S. W. 170; Smith v. State, 48 Tex. Cr. R. 203, 87 S. W. 151; Morgan v. State, 34 Tex. Cr. R. 222, 29 S. W. 1092; Koller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44.

There is complaint that the jury received evidence in its retirement. The bill discloses the facts upon which this contention rests was not filed during the term, and cannot, therefore, be considered. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116. The assignment with reference to argument relates to a matter that doubtless would not arise upon another trial. In the other questions raised we find no error.

Because the charge submitting the issue of provoking the difficulty was not supported by the evidence, the judgment of the lower court is reversed, and the cause remanded. 
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