
    HOLLMAN v. STATE.
    (No. 5655.)
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1920.
    On Motion for Rehearing, June 25, 1920.)
    1. Homicide <@=»300(8) — Charge on provoking difficulty held warranted.
    Charge on provoking the difficulty held warranted by the evidence.
    2. Criminal law <&wkey;822( I)— Charge must be taken as a whole.
    Error cannot be predicated on a phrase taken from a .paragraph of the charge which as a whole is correct.
    3. Homicide <&wkey;307(2) — Charge on aggravated assault held warranted by the evidence.
    In prosecution for murder evidence as to deadly character of weapon and nature of difficulty held to warrant a charge on aggravated assault.
    4. Homicide t&wkey;339 — Error in rejecting testimony brought out later by cross-examination held harmless.
    Error in excluding defendant’s testimony that he had weapons at his home, but did not take any when he went to where he met deceased, was harmless, where he later testified thereto, though on cross-examination.
    5. Homicide <&wkey;339 — Rejected evidence of defendant’s intent held supplied by other testimony.
    Rejected testimony that defendant had no intention of having trouble when he went to the place of difficulty held sufficiently supplied by other evidence.
    6. Criminal law <&wkey;>982 — Evidence of other offenses admissible on plea for suspended sentence.
    In prosecution for homicide evidence that defendant had cut the buggy tires of the deceased was admissible on defendant’s plea for suspended sentence, such evidence of other offenses not being limited to those involving moral turpitude. ,
    7. Criminal law <&wkey;>37l(4) — Evidence of other offense admissible to show ill will.
    In prosecution for homicide evidence of pri- or wanton cutting of buggy tires of deceased by defendant was admissible to show ill will and as bearing on self-defense.
    8. Witnesses <&wkey;404 — Defendant’s denial of other offenses may be controverted.
    In prosecution for homicide it was not error to question defendant as to his prior wanton cutting of buggy tires of the deceased, and on his denial thereof to bring witnesses to testify thereto.
    On Motion for Rehearing.
    9. Homicide &wkey;>300(8)— Charge on provoking the difficulty proper where brought on by defendant’s presence.
    Where the presence and conduct of defendant caused the difficulty, whether intended or not, a charge on provoking the difficulty was proper.
    10.Homicide &wkey;>276 — Question of provoking difficulty for jury.
    Where the acts and conduct of defendant are the cause of the (attack on him, the question of provoking the difficulty is one of fact for the jury.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    John Hollinan was convicted of manslaughter and appeals.
    Affirmed.
    See, also, 212 S. W. 663.
    Critz, Eawhon & McNair, of Taylor, and Wynne & Wynne, of Kaufman, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Kaufman. county of the offense of manslaughter, and his punishment fixed at two years’ confinement in the penitentiary.

Appellant was originally charged with the murder of one Bruce, the homicide having taken place on the night of July 4, 1918. It appears from the record that, beginning late in the afternoon of said day, there was a meeting at a country schoolhouse in Kaufman county, which extended on into the night, closing some time about 8. o’clock, and that deceased and his family were present at said meeting; also1 appellant and three of his brothers.

Appellant was about 19 years old, and lived with his father and two of his brothers a short distance from said schoolhouse; a married brother of appellant liying not far away.

Deceased and his family, including his son Eugene, who was about 16 years of age, lived further up the same road.

It seems that at the meeting at the schoolhouse, and before night, a younger brother of appellant had a difficulty with a smaller boy, and that Eugene Bruce remonstrated with appellant’s brother for roughly treating the smaller boy. Appellant was nearby, and took offense at the interference of young Bruce, and took a knife in his hand, and began to use rough language to young Bruce, and to curse him; and that the latter told appellant he was a coward to have his knife in his hand, and other words followed; the damn lie was passed, and the two exchanged a few blows. At this time deceased was nearby, and, according to some of the witnesses, urged his son to maintain his side 'of the difficulty, and according to appellant and his brothers, said at the time that the appellant had been running over them, and that “the son of a bitch had cut his tires a short time before.”

Shortly after the difficulty between the two bpys deceased and the married brother of appellant bad. some words, and were kept apart by tbe interference of bystanders; immediately following' wbicb appellant, with bis knife in bis band, walked several times around close to deceased and bis son.

After tbe meeting broke up appellant and bis brother Docie went to tbeir borne, and in a short time bis other brothers, Tom and Adolphus, with tbe wife and baby of tbe latter, also came to tbe borne of tbeir father; and presently, leaving tbe wife and baby there, tbe four brothers left and went back up tbe road toward tbe place where tbe homicide occurred. They seem to have separated just before meeting tbe deceased, and to have been some little distance apart at the time of such meeting. Tbe married brother, Adol-phus, met deceased, and turned back with him to where tbe appellant was. For some reason Adolphus 1-Iollman was not used as a witness.

Deceased was accompanied at tbe time by bis son Eugene and bis two daughters; and tbeir version of tbe occurrence was that when tbe parties met in tbe road appellant accosted deceased, and said, “You called me a son of a bitch, and I have come to make you take it back;” and that deceased said, “All right;” and that almost immediately appellant struck 'deceased on tbe bead with a club about three feet long; and when deceased fell appellant turned on Eugene Bruce, and struck at him, and chased him down tbe road, saying that be was going to do him the same way.

Joe Shivers, a witness for tbe appellant, said be was about 120 or 125 steps distant, and that be beard tbe lick, and then tbe screaming.

According to appellant, and those of bis brothers who testified, they went down to where they met tbe deceased, for tbe purpose of obtaining from him an apology to appellant for tbe language be bad used during tbe difficulty at the schoolhouse. In somewhat varying language these witnesses testified that when tbe parties met appellant asked for an apology; that deceased refused to apologize, and jerked out his knife and started toward appellant, who thereupon struck him with a stick. Appellant, while a witness, admitted that' a man of bis age and strength could kill a man with tbe stick be used, wbicb be said was as large as bis wrist and about two feet long.

Tbe doctor who 'went to see deceased described bis broken skull, and said that a stick capable of causing such a wound would, in tbe bands of appellant, be a deadly weapon, and that tbe inevitable effect of such a wound as be found,and described would be death.

Noticing tbe contentions made by appellant in the order in wbicb same are presented in bis brief, we observe that be excepted to the court’s charge on provoking the difficulty, for. tbe alleged reason that there was no evidence which called for such a charge.

If there be any evidence calling for tbe charge given, this court will uphold tbe action of tbe trial court in giving tbe same. Tbe entire evidence for tbe appellant shows that, after tbe meeting at tbe schoolhouse ended, deceased started home with bis family, and that appellant and bis brothers came back in tbe night from tbeir homes, and, placed themselves along tbe roadside, and that when deceased came by appellant asked him! for an apology, wbicb. they say deceased refused, and pulled out bis knife and started at appellant. Appellant’s theory was self-defense, based on said testimony, and be claimed that his only purpose was to get an apology, and that be was forced by the attack of deceased to defend himself. The state’s reply to the evidence of appellant supporting this theory was that tbe words and actions of appellant and his brothers caused tbe attack, if any, by deceased, upon wbicb appellant could base self-defense.

Admitting tbe truth of this testimony of appellant for tbe sake of argument, it would appear that, immediately following tbe meeting and accosting deceased, tbe latter started towards appellant with a knife in his band. Something caused such conduct on tbe part of deceased, and it seems reasonable to attribute it to tbe acts and words of appellant, or appellant and brothers. At least it was for the jury to decide, under a proper charge of the court, whether or not such acts and conduct of the appellant, or of appellant and bis brothers, produced and caused the attack, which be claims to have given rise to bis right of self-defense. There was no exception to the form of tbe charge on provoking the difficulty, and we think tbe same was properly given. Appellant has a right to bis theory of self-defense, but tbe state has also a right to have submitted to the jury its theory that tbe actions of deceased relied on as raising self-defense were tbe expected results of tbe provocation arising from tbe acts and words of appellant, or appellant and his brothers. There is no question as to there being trouble between deceased and bis son on one side and appellant and his brothers on tbe other side at tbe schoolhouse, nor that after they went home that night appellant and bis brothers all came back to tbe place where tbe homicide occurred, and were there ranged along tbe roadside when deceased came up. One of appellant’s brothers testified that deceased said, “What does this mean?” and that appellant said be bad come down to get an apology, and deceased said, “Apology, bell; I look like apologizing,” and started at appellant. These facts and the situation were enough to justify the charge mentioned. Winters v. State, 51 S. W. 1110; Gaines v. State, 58 Tex. Cr. R. 631, 127 S. W. 181; McGrew v. State, 49 S. W. 228; Coleman v. State, 49 Tex. Cr. R. 357; 91 S. W. 783; Smart v. State, 101 S. W. 990; Casey v. State, 50 Tex. Cr. R. 392, 97 S. W. 496.

Appellant also claims errors in that part of the charge of the court which told the jury as follows:

“But if you believe from the evidence beyond a reasonable doubt that the defendant struck and killed the said W. M. Bruce with a stick, and that he did not intend to kill the said W. M. Bruce by the means used, then yon are instructed that the defendant would be guilty of an aggravated assault.” „

The exception thereto attempts to raise error by carving out a phrase from a paragraph of the charge, which, if taken alone, might not be self-explanatory. This is not permissible: Unless such phrase, when taken with the context, shows error, same will not be so considered by us. The whole paragraph of said charge is as follows, and is not erroneous:

“Now, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, John Hollman, killed W. M. Bruce, but you further find that the means used in killing the said W. M. Bruce was of such nature as would not likely produce death, or that the de-. fendant did not intend to kill the deceased by the means used, or if you have a reasonable doubt thereof, then you are instructed that the defendant would not be guilty of manslaughter; but if you believe from the evidence beyond a reasonable doubt that the defendant struck and killed the said W. M. Bruce with a stick, and that he did not intend to kill the said W. M. Brucé by the means used, then you are instructed that the defendant would be guilty of an aggravated assault, unless he acted in his own self-defense, as self-defense is hereinafter defined.”

The evidence was uncontra.dicted, to the effect that the weapon used by appellant was deadly in character, and the conclusion is inevitable that an assault made with such a weapon, would be an aggravated assault, if same were a less offense than manslaughter, and if the assault was not committed in self-defense; and that is substantially what the court told the jury in the paragraph of the charge last above quoted.

Appellant has a bill of exceptions to the alleged refusal of the trial court to permit him to testify that he had guns and arms at his home at the time he started to the scene of the homicide, and that he did not take any of the same with him. The court approves this bill, with the statement that such evidence was later admitted. Referring to the statement of facts, we find this explanation of the court to be in accord with the testimony as it there appears. The only contention here made is that the court committed error by refusing to permit the evidence on direct examination, even though he did allow the same to be brought out by cross-examination. What the jury want are the facts, and no difference appears in the testimony as brought out on cross-examination from that which would have been given if said question had been answered in direct testimony. While such practice may not ‘be commended, and might even be carried to an extent where it would amount to injury, still only one instance appearing, and where the trial court probably changed his mind after making his ruling against such evidence, we would not think same to be an' abuse of the rights of the accused. Under our liberal rules of practice, it is clear that appellant might have fully explored, upon redirect examination, the former forbidden field, if he had so chosen.

Appellant complains because, the state-objecting on the ground that the question had already been answered, the appellant was not allowed to make answer to the question on. redirect examination, to wit, “Did you go down there with the intention of having any trouble?” In his approval of this bill the trial court says that this matter was admitted in testimony of the defendant. Examining the statement of facts, we note in appellant’s testimony the following statement:

“I had no intention of going to meet Mr. Bruce when I left my father’s house. * * * I went to Adolphus’s house to play forty-two. * * * He told me about Mr. Bruce’s apology to him. * * * Adolphus asked me to go down there. * * * The reason I went down there was because I wanted to settle it without any more trouble. * * * I went down, there for the purpose of making peace or settling in some manner the difficulty with the-man who had cursed me.”

Other expressions of his amicable intentions appear elsewhere in appellant’s testimony, and we are unable to see how his answer to the question set out in said bill, as-appears above, would make any clearer what he claimed to be his attitude toward the deceased at the time he went down to the place-where he met him and the killing occurred. It follows, in our opinion, that no error appears by reason of the refusal of this evidence.

While on the witness stand, appellant was-asked if the trouble did not start on the evening of July 4th because he cut the buggy tires of Eugene Bruce. This was objected to for various reasons, which the court overruled, and appellant answered, “No, sir; not to my knowledge.” This bill discloses nothing further as to the evidence, but the explanation of the trial court mentions the fact that appellant had testified to cutting the buggy tires. Referring to the statement of facts for verification of the explanation of the court below, we find that on his direct examination appellant testified that at the time of the difficulty between himself and Eugene Bruce at the schoolhouse, a short. time before the fatal encounter, deceased had | said, “The damn son of a bitch had cut his buggy tires,” and that he (appellant) had never heard of this before that minute — that was the first time he had heard from him about the buggy tires. It appears from the evidence that deceased had a buggy which Eugene drove and called his, and that the rubber tires of this buggy. had been cut a few days before this difficulty by some one.

Other bills of exception bring before us the fact that further in the testimony of the appellant he was asked if he did not cut the tires of Eugene’s buggy at a certain gathering, when a certain Howard Woodward, who was a witness for appellant, was with him, and over objection appellant stated that he did nothing of the kind. Later, the state placed Howard Woodward again on the stand, and ho testified, over objection, that he was with the appellant on a certain occasion in July, shortly before the homicide, and that he saw appellant cut the buggy tires of Mr. Bruce’s buggy, and put some pieces of peaches in the back seat. Said buggy was the one Eugene Bruce was driving, and which he claimed as his. We see no error in the action of the trial court in admitting this testimony. The appellant had filed his plea for suspended sentence, and in such case proof of his guilt of other offenses is admissible, and is not limited to those involving moral turpitude. Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360; Martoni v. State, 74 Tex. Cr. R. 90, 167 S. W. 349.

We are also of the opinion that evidence of the prior wanton destruction of the buggy tires of deceased and his son on the part of appellant would tend to show ill will toward the deceased and his son, both of whom were involved in the fatal difficulty, and that such evidence was admissible as bearing upon appellant’s claim of friendly intent toward the parties, and that he acted in his necessary self-defense at the time of the homicide. We further believe such evidence admissible as explaining the statement attributed to deceased by appellant a short time before the fatal difficulty, in which appellant claimed deceased used the language for which he claimed he was seeking an apology at the time of the killing. We believe it was proper to ask appellant about these matters while a witness in his own behalf, and upon his denial thereof to place witnesses on the stand and prove the truth of the matters inquired about.

We have carefully considered this record. The youthfulness of appellant, and the fact that he may have been enraged at deceased because of the language used by deceased, which, if, true, was of such character as is regarded as insulting, probably caused the jury to convict him only of manslaughter, and to give him the lowest penalty; but we find no reversible error in the record, and the judgment of the trial court is affirmed.

On Motion for Rehearing.

There are no new questions., raised by appellant in his motion for rehearing. ' He again insists that we should not have sustained the action of the trial court in charging on provoking the difficulty. We reviewed these matters rather fully in our former opinion, and see no reason to change our conclusion. We think it is apparent, from a review of the facts in the case, that the state was justified in asking that a charge be given presenting the right of imperfect self-defense. There is no question but that a short time before the fatal difficulty there had been an encounter between the son of deceased and the appellant which came very near involving the deceased and several others seriously. It is beyond question that appellant, with his three brothers, went out in the nighttime, and stopped deceased in the road, and that appellant said he went “kinder” behind the others; and as they saw deceased approaching appellant said he stopped by the stick with which the fatal blow was struck, because he was afraid of deceased — afraid he would have trouble with him. It is also admitted that when deceased came up he wanted to' know what this was about, and that appellant accosted him, and, according to the defensive testimony, said that he wanted an apology. It is claimed by appellant that deceased replied something to the effect that he looked like apologizing, and started at appellant with a knife. It thus seems clear that the presence and conduct of appellant caused the attack upon him by deceased, whether it was intended or not. This being true, the question of provoking the difficulty would not be improperly submitted. Branch’s Ann. P. C. p. 1093; Winters v. State, 51 S. W. 1110; Smart v. State, 101 S. W. 990. In every case where the acts and conduct of the accused are the cause of an attack upon him, it is a question of fact, under appropriate instructions, whether his acts and conduct were for the purpose of provoking a difficulty or not, or were reasonably calculated to provoke such. Circumstances alone may be oftqn of sufficient cogency to justify a charge on provoking a difficulty. Rogers v. State, 71 Tex. Cr. R. 271, 159 S. W. 44; Tate v. State, 35 Tex. Cr. R. 235, 33 S. W. 121. Conduct of the accused alone may raise the issue of provoking a difficulty. Taylor v. State, 47 Tex. Cr. R. 122, 80 S. W. 378, 122 Am. St. Rep. 675. We see no reversible error in the action of the trial court in this particular.

Appellant also again urges his objection to a certain portion of a paragraph of the court’s charge. We are unable to agree with this contention, and think we correctly decided the matter in the original opinion.

Appellant also renews his objection to the admission of testimony that a short time before the fatal difficulty he cut the rubber tires on the buggy belonging to deceased, and put parts of peaches on the seat of said buggy. There seems no question hut tha.t such testimony would be admissible upon the issue of malice, and to show appellant’s state of mind toward deceased and his son, both of whom were involved in the fatal difficulty, as well as the difficulty that almost immediately preceded it.

We have found no reversible error in said motion for rehearing, and same will be overruled. 
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