
    CARAWAY v. STATE.
    (No. 7841.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1923.
    Rehearing Granted June 27, 1924.)
    1. Criminal law <@=>593 — Refusal to postpone trial on account of absence of cocounsel held not error.
    Refusal to postpone trial, because of absence of cocounsel,' held not error, where counsel who attended the trial was a skillful and experienced lawyer and faithfully represented accused, and trial was had a year after indictment.
    2. Homicide <®=>17 — Guilt of killing one by shot aimed at another determined by justifiability of shot fired.
    Where accused, in shooting at J., unintentionally killed M.. accused’s guilt or innocence depended on whether the act of firing at J. was culpable or justifiable.
    3. Homicide <@=>125 — When firing of shot aimed at one, but killing another, is not offense, stated.
    If the shot fired by accused at J. was justifiable under the law of self-defense, the fact that the shot intended for J. killed M. constituted no offense.
    4. Homicide <@=360 — When firing of shot aimed at one, but killing another, is manslaughter, stated.
    If the shot fired by accused and which killed M. was fired at J. under the influence of a sudden passion, arising from an adequate cause and rendering the mind of accused incapable of cool reflection and the killing was not justified under the law of sélf-defense, the offense was manslaughter.
    5. Homicide <@=>300(8) — Evidence held to warrant hypothetical instruction stating when firing of shot could not be justified on theory of self-defense.
    Evidence held to justify trial court’s instruction that if J. attacked accused and the latter fired to defend his life against such attack, but the attack was brought on by his own words or conduct, reasonably calculated to bring on a difficulty and was so intended in order that accused might kill or injure J., the firing of the shot was not justifiable under the law of self-defense.
    6. Homicide <@=>308(4) — Evidlelnee of malice held sufficient to warrant charge on murder.
    Evidence of accused’s malice toward J. held sufficient to warrant charge on murder.
    7. Homicide <@=>I5"8(I) — All attendant facts of previous difficulties admissible.
    In a trial for murder all attendant facts including previous difficulties are admissible in evidence.
    8. Homicide <@=>142(10) — Pleading charging murder of one killed by shot fired at another, held! to authorize admission of attendant facts.
    Where the shot fired at J. unintentionally killed J.’s son, no other pleading than a charge of murder of the son was necessary to render relevant evidence which would have been proper had the shot killed J. instead of his son.
    9. Homicide <^=295(1) — Charge on manslaughter held not subject to criticism for using term “provocation must arise at the time,” in view of other language used.
    A charge on manslaughter was not subject to criticism for using the term “the provocation must arise at the time,” where in the same paragraph the trial court added that the former conduct and relations of the parties could be considered in copxnection with the present provocation.
    10. Criminal law <@=>810 — Instruction on man-siáughter held not confusing or contradictory.
    The use in a charge on manslaughter of the words “sudden passion” held not to render confusing or contradictory the further statement in the charge that the jury may take into consideration facts and circumstances occurring prior to the homicide, since the passion may be sudden though antecedent matters contribute.
    11. Criminal law <@=982 — Giving of instruction touching suspended sentence held not error.
    Giving of instruction touching suspended sentence that, if jury found accused guilty of of manslaughter and “fixed the punishment at not exceeding five years,” they were privileged to suspend the sentence, held not error.
    On Motion for Rehearing.
    12. Homicide <@=>192 — When right of self-defense is not forfeited by fact of having provoked! difficulty.
    One whose acts provoke a situation wherein he must defend himself, who does so without intending thereby to provoke a difficulty or who does so without intent to use the provoked assault as a pretext for killing or injuring, dpes not thereby forfeit his right of self-defense.
    13. Homicide <@=>300( 13) — Charge on provoking difficulty held fatally defective in omitting element of accused’s intent.
    Affirmative charge on subject of provoking difficulty held fatally defective in omitting to state that in order to forfeit the right of self-defense accused must have intended by his acts to provoke the difficulty in order to use it as a pretext for killing or injuring and that what he did was reasonably calculated to effect that purpose.
    14. Criminal law <@=>770(2) — Failure to give converse of affirmative charge on provoking difficulty held error.
    Eailure to give converse of affirmative charge on subject of provoking the difficulty, held error.
    Appeal from District Court, Hardin County ; J. M. Combs, Judge.
    T. B. Caraway was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Dycus & Shivers, of Port Arthur, for appellant.
    
      Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Under an indictment for murder, appellant was convicted of manslaughter ; punishment fixed at confinement in the penitentiary for ja period of five years.

The appellant and Will Jackson lived upon adjoining farms. .Will Jackson’s wife was appellant’s sister. Appellant fired at Will Jackson and unintentially killed Marvin Leo Jackson, the infant son of Will Jackson. The following is appellant’s version: Some weeks earlier, he and Will Jackson quarreled. Jackson said to appellant: “You go on home and get your d-n gun, come back and I will buckshot it with you.” Appellant replied: “You stay on your side of the fence, and I will stay on mine, d-n you.” On the day of the tragedy, appellant’s dog caught a hog which was in his field, and he threw the hog over the fence.' Will Jackson accosted appellant with an epithet and said: “That will be one hog you will have to pay for.” Appellant, using an epithet said: “I will be back here directly to put the rest of them out.” Jackson went in his house, and ap-péllant went for his gun. On his return, Mrs. Jackson was trying to drive some pigs out of appellant’s field. He picked up a stick to help her. They quarreled and she was ordered out of appellant’s field. She grabbed his gun and said she would take it away from him. Thinking she was trying to disarm him, he struck her with the stick. During the scuffle, Jackson came out of his door with his shot gun. He fired a number of shots, striking the appellant. The appellant then fired both barrels of his gun at Jackson.

The state’s version is to the effect that, when. appellant dogged the hog and threw it over the fence, Jackson said, “Dad blame your hide; you will pay for it.” Appellant said, “I will be back here in a minute with that gun.” Mrs. Jackson went into the field and was running the pigs out. She told Jackson that the appellant was coming with his gun. Jackson told appellant that his fence was bad and that he had no right to hurt the hog. Appellant picked up a sprout and hit Mrs. Jackson with it. She gave him a shove and he hit her in the mouth. Jackson ran for his gun which he had previously laid on the bed. After getting his gun, he put his head out the door and appellant fired both barrels of his gun at once. Jackson immediately returned the fire. The shots fired by appellant killed the little boy, Marvin Leo Jackson, who was sitting in the kitchen door with his feet on the step.

The trial took place about a year after the indictment. Two attorneys had previously been employed by the appellant. One of them was absent for business reasons at the time of the trial. The other, a skillful and experienced lawyer, was present and faithfully represented appellant in conducting the trial. In refusing to postpone the trial, the court was not in error. Walker v. State, 13 Tex. App. 618; Usher v. State, 47 Tex. Cr. R. 95, 81 S. W. 309; Branch’s Ann. Tex. P. C. § 342.

In shooting at Will Jackson, appellant unintentionally killed Marvin Leo Jackson. His guilt or innocence depends on whether the act of firing at Will Jackson was culpable or justifiable. Richards v. State, 35 Tex. Cr. R. 39, 30 S. W. 805; Branch’s Ann. Tex. P. C. § 1901. If appellant, in firing at Will Jackson, was justifiable under the law of self-defense, the fact that the shot intended* for Will Jackson killed the. deceased, constituted no offense. Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165; McCullough v. State, 62 Tex. Cr. R. 126, 136 S. W. 1055; Spannell v. State, 83 Tex. Cr. R. 433, 203 S. W. 357, 2 A. L. R. 593; Branch’s Ann. Tex. P. C. p. 1055. This the jury was told in the court’s charge. If the shot which killed the deceased was fired at Will Jackson under the influence of a sudden passion, arising from an adequate cause and rendering the mind of the appellant incapable of cool reflection and the killing was not justified under the law of self-defense, the offense was manslaughter. Clark v. State, 19 Tex. App. 495; Branch’s Ann. Tex. P. C. p. 1055. The jury was so instructed.

If Will Jackson attacked the appellant and he fired to defend his life against such attack, but the attack was brought on by his own words or conduct reasonably calculated to bring on a difficulty and was so intended in order that appellant might kill or injure Will Jackson, the firing of the shot was not justifiable under the law of self-defense. Branch’s Crim. Law, § 464. The evidence warranted the trial court in so instructing the jury, and in doing so no error was committed-.

There was sufficient evidence of malice toward Will Jackson to warrant the charge on murder. Besides, the verdict eliminated the question of murder.

No pleading other than a charge of murder of Marvin Leo Jackson was necessary to render relevant evidence which would have been proper had the shot killed Will Jackson instead of his son. In a trial for murder, all attendant facts are admissible in evidence. Cyc. of Law & Proc. vol. 21, p. 889. So with the previous difficulties. Washington v. State, 8 Tex. App. 377; Howard v. State, 25 Tex. App. 686, 8 S. W. 929; Branch’s Ann. Tex. P. C. § 1881.

The criticism of the charge on manslaughter, because of the use of the term “the provocation must arise at the time,” is without merit. In the same paragraph of the charge this expression is qualified and explained to the jury in appropriate language showing that while the provocation must arise at the- time the offense is committed, and must not be the result of the former provocation, yet the former conduct and relations of the parties may be considered in connection with the present provocation. The language selected is, in substance, such as has frequently been sanctioned by this court. Nor does the fact that the court used the words “sudden passion” render confusing or contradictory the further statement in the charge on manslaughter that the jury may take into .consideration the facts and circumstances occurring prior to the' homicide. The passion may be sudden, though antecedent matters contribute.

There was no error, we think, in the court instructing the jury touching the suspended sentence; that, if they found the appellant guilty of manslaughter and fixed the punishment at not exceeding five years, they were privileged to suspend the sentence.

All complaints of the manner of trial have been considered. However, none of them furnish ground for reversal.

Finding nothing in the record which authorizes a reversal of the judgment, it is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In appellant’s motion for rehearing our attention is called to certain matters complained of which were not adverted to in our original opinion. The* court charged on provoking' the difficulty. The language of the charge applying the law of such issue to the facts is as follows:

“Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant shot at the said Will Jackson, if he did shoot at him, did so under circumstances that otherwise would be self-defense as explained in this charge, but that the said Caraway, the defendant, was guilty of acts which provoked the situation > requiring him to defend, himself, and that under such circumstances he fired upon the said Will Jackson with intent to kill him, but by mistake or accident killed the said Marvin Leo Jackson, thep you will find him guilty of manslaughter and assess his punishment at confinement in the penitentiary for any term of years not less than two nor more than five.” ,

This charge was excepted to from various angles. That it is erroneous is apparent. /One whose acts provoke a situation wherein he has to defend himself, who does so without intending thereby to provoke a difficulty, or who does so without intent to use the provoked assault as a pretext for killing or injury, does not thereby forfeit his right of perfect self-defense. The charge quoted is stripped of instruction as to any intent of appellant in the premises. There was no question but that he went to the place where the shooting occurred, carrying his gun, nor of the fact that at said place and while in his own field, but near the home of Will Jackson, he struck Jackson’s wife with a stick and almost immediately thereafter appellant and Jackson fired at each other at or about the same time. It thus could easily be seen how hurtful might be the instruction given, unless qualified by the further statement to the effect that in order to forfeit his right of self-defense the defendant must have intended by his acts to provoke such difficulty, which he purposed using as a pretext, etc., and that what he did was reasonably calculated to effect that purpose.

Another thing — said charge on provoking the difficulty wholly fails to submit the converse of said proposition, and made no application of the law to the facts in case the jury found there was no intention on the part of appellant to provoke a difficulty in what he did. Mr. Branch collates many authorities in section 1958 of his Annotated P. C. which hold that it is error to refuse to charge the converse of such theory when the affirmative thereof is submitted. The matter is discussed at some length in Mason v. State, 88 Tex. Cr. R. 642, 228 S. W. 952.

Believing upon more mature reflection that the charge of the court was fatally defective in the matters above discussed, and that we erred in our affirmance, the motion for rehearing will ■ be granted, the affirmance set ■aside, and the judgment now reversed and the cause remanded. 
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