
    CLARK v. STATE.
    (No. 8881.)
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1925.)
    Homicide <§=>300 (8)' — .Refusal of instruction on self-defense held unwarranted under evidence where charge on provoking difficulty was given.
    Evidence in prosecution of accused for killing his mother-in-law after her repeated efforts to bring about separation between him and his wife, held to render erroneous the refusal of instruction on self-defense, in view of court's charge as to provoking difficulty.
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    Eugene Clark was convicted of murder, and he appeals.
    Reversed and remanded.
    Wm. H. Hanson, of Tyler, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

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

Appellant shot and killed his mother-in-law, Emma Ross.

The principal legal question arises on account of the refusal of the request of the appellant that the jury be instructed that it was his right, for his own protection, to arm himself and go to the house of the deceased to request his personal property which had been taken from his home without his consent.

Appellant was a negro about 21 years of age. He had been married to a young woman, the daughter of the deceased, about 6 months. A short' time after the marriage, upon the suggestion of the deceased, they moved to her house. A separation took place and the appellant was ordered to leave by the deceased and to refrain from returning to her house. A reconciliation followed and the appellant and his wife took up their abode at the home of Will Davis. According to the appellant’s testimony, on the day of the homicide, following his custom, he left home early in the morning, parting from his wife on friendly terms. Before noon his wife came to his place of work and told him she was going to leave him. Soon after, upon going to his home, he found that his wife and an express man were'in the act of mov ■tag Ms Household effects. "He forbade this, ¿n'd another reconciliation took place, his wife getting in the car and returning with 'appellant to' the home of Will Davis. Upon, reaching there, the deceased appeared. and told her' daughter that she had come to see why she had not returned. Appellant and his wife then parted, he went to his work,! which was driving a delivery wagon for a grocery store, leaving his wife at home. Upon his' return at the dinner hour he found his household effects removed. He went to the home of the deceased where he found his wife, who stated that the deceased had persuaded her to stay at her house. Appellant ■then said- that he wanted his part of the ■“things”; that he would put them out in the street and would later come and get them. His wife objected to this and the deceased appeared upon the scene with a stick ,oi wood in her hand with which she struck the appellant. A scuffle ensued between appellant and deceased, and she was about to hit him with the stick when his wife said to her, “Mama, don’t hit' him with the stiqk.” Deceased, with an epithet,' said, “I will kill him,” and went into the. room and procured a gun. The wife told her mother not to shoot. She repeated the statement' that she would kill him. He took hold' of the 'gun to wrest it from her possession. While the gun was pointed at him, she pulled the trigger but the gun did not fire. She then unbreached it and discovered that it was empty. She went for' ammunition and the appellant fled to the home' of Will Davis. He afterwards return-' ed, bringing a gun with him. He testified-that when he reached the house, the deceased came to the door with the gun in her hand, Just as she threw up the gun, he fired at the door. She then shut 'the door and locked up the house. Appellant retreated beyond the 'range of the gun, telling her, however, that if she would put his things out of the house, everything would be all right. She rejected this proposal, but finally told him to come in and get his things. On entering the house and seeing her at the door, he fired, thinking there was a ruse to kill him.

A witness for the state testified' in substance that the deceased was attempting to comply with the appellant’s request to put bis property out of doors and that he shot her when she was unarmed.

There was other testimony with reference to '.the possession of the gun by the deceased at the time she was shot.

The eighth paragraph of the court’s charge reads thus:

“If you should find beyond a reasonable doubt that the defendant left the premises of .deceased for the purpose of arming himself with the specific intent to return and take the life of deceased, then, if you shall further so find that he armed himself with a gun and" returned to the premises of deceased and .entered the •house with said gun, and in pursuance of such previously formed design and intent, and with a calm and deliberate mind -and with malice aforethought, as hereinbefore defined, he shot 'and killed the deceased, - he would be guilty ,of murder, even though deceased may have made an assault .upon him when he entered her premises, and in case you so find you will find him guilty of murder. If, however, the defendant, with the purpose and intent to kill the deceased, left her premises and so armed himself, but if after he returned to the premises he abandoned such intent and entered said premises for the purpose of removing or aiding in removing the piece of furniture in question, then -his tight of self-defense would not be cut off or abridged, and if after entering said premises the.deceased by some act then done or by any conduct on her pari caused it to reasonably appear 'to defendant, viewed from his standpoint, that he was in danger of death or serious bodily harm at the hands of the deceased, and so believing he shot and thereby killed deceased, or if you have a reasonable doubt thereof you will find him not guilty.”

The issue of self-defense was submitted in paragraph 7, which concludes with the statement in substance that if the. jury found the facts as detailed in the paragraph, they would find the defendant not guilty “unless they found the defendant guilty under paragraph 8 of the charge.” Paragraph 8 is obviously a limitation or qualification of the • right of self-defense. It is apparently-in the nature of a charge on provoking the difficulty, though it is wanting- in some of the necessary elements of such a charge. Having* qualified the right of perfect self-defense •by the charge mentioned, we think the court should not have declined to give the ,special charge, or to amend the general charge, s.o that the. jury might understand that the appellant had the right to return to the premises of the deceased for the purpose ■ of obtaining his property, ancl that in so doing it was his right to arm himself, to the end that he might protect himself against aggression upo'n the part of the deceased. We understand this is to be in accord with the rule long prevailing and often applied in this state, notably in Shannon v. State, 35 Tex. Cr. R. 2, 28 S. W, 687, 60 Am. St. Rep. 17; Melton v. State, 47 Tex. Cr. R. 458, 83 S. W. 822; Roberson v. State, 83 Tex. Cr. R. 238, 203 S. W. 349; Moore v. State, 96 Tex. Cr. R. 493, 258 S. W. 476; Stanley v. State, 81 Tex. Cr. R. 31, 193 S. W. 151; Mason v. State, 90 Tex. Cr. R. 560, 236 S. W. 93; Carlile v. State, 96 Tex. Cr. R. 37, 255 S. W. 990.

Eor the reasons Stated, the judgment is reversed, and the' causfe remanded. 
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