
    ROEBUCK v. STATE.
    (No. 10649.)
    (Court of Criminal Appeals of Texas.
    March 9, 1927.)
    1. Homicide <&wkey;!90(7) — Evidence of uncom-municated threats by deceased held admissible in murder trial to show that difficulty was begun by deceaseds brother and participated in by deceased.
    In murder trial, evidence of deceased’s statement, after outsiders prevented difficulty between his brother and defendant, that “we will get him yet * * * or. call our father and he will bring a gun,” 'held, admissible to corroborate defendant’s theory that difficulty was begun by deceased’s brother and participated in by deceased, though such threats were not communicated to defendant.
    2. Homicide <&wkey;>295(l) — Failure to charge on deceased’s brother’s conduct before and at time of homicide held reversible error.
    In murder trial, where evidence showed that deceased’s brother used opprobrious epithets towards defendant a few days before homicide and struck latter’s son at time of homicide, court’s failure to instruct jury to consider such brother’s acts and conduct, in connection with those of deceased, in determining adequacy of provocation, was reversible error.
    Commissioners’ Decision.
    Appeal from District Court, San Augustine County; V. H. Stark, Judge.
    H. B. Roebuck was convicted of murder, and he appeals.
    Reversed and remanded.
    W. T. Davis, of San Augustine, and S. W. Blount, of Nacogdoches, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted of murder, and his punishment assessed at confinement in the penitentiary for life.

The record discloses that on the day of the homicide the appellant, together with his son-in-law, Lee Tony, and his son, Edward Roebuck, overtook on the public road and were in the act of passing the deceased, Otis Harvey, and his two brothers, Burrell and Arnold Harvey, when the difficulty in question arose. The record further discloses that Burrell Harvey was a young man about 18 or 19 years of age, that the deceased was about 14 years of age, and that Arnold Harvey was about 13 years of age. It appears that the appellant and Eli Harvey, father of the deceased, had a former difficulty, out of which the homicide finally resulted. It was the contention of the state that Edward Roebuck, son of the appellant, began the difficulty at the time of the homicide by inquiring of Burrell Harvey if he had called appellant “a son of a bitch” a few days prior thereto. It was the contention of the appellant that Burrell Harvey started the difficulty by refusing to speak to Edward Roebuck and telling .him to “go to hell” because the said Edward Roebuck spoke to him, the said Burrell Harvey; and that Burrell Harvey and. the deceased were the aggressors in the difficulty, Burrell having a drawn knife and the deceased handing to him an automobile pump with which he struck Edward Roebuck a severe blow on the head, knocking him down, whereupon the appellant, according to his contention, drew a pistol and began firing in defense of his son, with the result that deceased was killed. It was also the contention Of the appellant that he was shooting at Burrell Harvey and accidentally hit deceased. It was the contention of the state on this issue, and evidence was introduced to that effect, that appellant was shooting at both Burrell Harvey and the deceased.

There are five bills of exception in the record. Bills 1 and 2 complain of the action of the court in refusing to permit appellant, after it was shown by the testimony that Burrell Harvey, in the town of San Augustine a few days prior to the homicide, had called the appellant “a son of a bitch” and outsiders had interfered in preventing a difficulty, to show that within a few minutes thereafter the deceased, Otis Harvey, stated to the witness Yollie Peters, in referring to the difficulty and the appellant:

“We would have gotten him a while ago if we had not been interfered with by Bryan Nolan; we will get him yet on the road some time, and if we are not able to get him we will call our father and he will bring a gun, and we will give them what they are looking for.”

The state objected to this testimony on the ground that said ajleged threats had never been communicated to the appellant. It is the contention of the appellant that although said threats were not communicated to him, still when the issue was raised as to who began the difficulty this testimony was admissible for the purpose of corroborating his theory that the difficulty was begun by Bur-rell Harvey and participated in by the deceased. The appellant’s contention will have to be sustained, under the facts developed in this record and the decisions of this court. Mr. Brancli, in Ms Ann. P. O. (section 2079), states:

“Proof of an uncommunicated threat made by deceased against defendant is admissible where it is an isstte as to who made the first demonstration or who began or who was most likely to begin the difficulty,” citing Pitts v. State, 29 Tex. App. 380, 16 S. W. 189, and many other authorities.

Also see Dunne v. State, 98 Tex. Cr. R. 7, 263 S. W. 615; King v. State, 104 Tex. Cr. R. 583, 286 S. W. 231, and authorities therein cited.

The appellant also contends that the court was in error in limiting and restricting his charge on manslaughter, to the acts and conduct of the deceased, instead of -instructing the jury that they could take into consideration the acts and conduct of the deceased and those of his brother, Burrell Harvey, in determining the adequacy of the cause to provoke the manslaughter mind on the part of appellant. The court failed to charge the jury on the acts and conduct of Burrell Harvey on this issue, and this, we think, was error, as the record discloses that just a few days prior to the homicide it was he who used very opprobrious 'epithets towards the appellant in the town of San Augustine, and who struck the appellant’s son over the head with an automobile pump at the time of the homicide, and who was one of the principal actors in said affray. In view of this condition of the record, we are of the opinion that the court’s failure to charge on the acts and conduct of Burrell Harvey, in connection with those of the deceased, was reversible error. House v. State, 75 Tex. Cr. R. 338, 171 S. W. 206; Claxton v. State (Tex. Cr. App.) 288 S. W. 449, on rehearing.

For the errors above discussed, we are of' the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court. 
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