
    GILMORE v. STATE.
    (No. 6554.)
    (Court of Criminal Appeals of Texas.
    Feb. 1, 1922.)
    1. Homicide <&wkey;300(7) — Necessity of giving instructions on provoking difficulty.
    In a homicide case, the issue of provoking the difficulty requiring instructions thereon arises when the deceased is the first assailant and when his action results from some previous conduct or words of defendant, calculated and intended to provoke an attack, but does not arise when the controversy is as to who began the attack.
    2. Homicide <&wkey;300(13) — -Instructions on self-tfefense held objectionable as ignoring issues.
    In a murder prosecution, a charge on provoking the difficulty, which treated the blows of the parties as the beginning of the difficulty and ignored the words and conduct of deceased including his previous threats, and also ignored the conduct of a third person who participated in the difficulty, held objectionable and not warranted by the evidence.
    3. Homicide <©=^300(8) — -Evitfence held to require charge on communicated threats.
    In a murder prosecution, held, that the evidence required a charge on the law of communicated threats in connection with the law of self-defense.
    4. Homicide <&wkey;300(8) — Instruction as to participation of third person in controversy as affecting right of self-defense required.
    Where a third person, also an enemy of defendant, participated with the decedent in the controversy, an instruction from which the jury might understand that, if viewed from his. standpoint, the defendant was in danger from both decedent and the third person, he might embrace both in his defensive efforts, held required.
    5. Criminal law <&wkey;368(3) — Witnesses &wkey;M88 (2) — -Declaration by defendant’s wife after homicide held res gestae and not inadmissible as privileged communication.
    Evidence that, immediately after the shooting, defendant’s wife exclaimed, “You told me you were going to kill him, and now you killed him,” was not inadmissible under the rule excluding confidential communications between husband and wife, as it was not the testimony of the wife, but her declaration, and such testimony was admissible as res gestae.
    6. Witnesses e&wkey;l93 — Wife’s declarations in presence of others not privileged.
    A declaration by defendant’s wife ceased to be confidential when made in the presence of others.
    7. Criminal law <&wkey;407(I)— Accusation by defendant’s wife- not denied by defendant held admissible.
    A declaration by defendant’s wife after the shooting, “You told me you were going to kill him, and now you killed him,” publicly made, and not denied by defendant at the time, was in the nature of an accusation in which his acquiescence might be inferred from his silence.
    8. Criminal law (&wkey;982 — Homicide <&wkey;!66(6^ . —Evidence of defendant’s relations with a woman other than his wife admissible to show cause of unfriendliness with decedent, but inadmissible on issue of suspended sentence.
    In a murder prosecution, where the state’s theory was that defendant acted upon malice engendered by reports of his conduct made to his wife by decedent, evidence of circumstances tending to show that defendant was on terms of intimacy with a woman referred to by decedent in his conversation with defendant’s wife was admissible upon the controverted issue as to the real cause of the unfriendly relations between decedent and defendant, bub was not admissible upon the issue of suspended sentence.
    9. Homicide <&wkey;>!99 — Evidence of decedent’s conduct towards defendant’s wife held admissible on issue of manslaughter.
    In a murder prosecution, the alleged conduct of decedent in pushing defendant’s wife out of the way during the conflict was a proper matter for the jury’s consideration on the general issue of manslaughter.
    10. Homicide <&wkey;295(2) — Evidence held not to require instruction as to decedent’s conduct towards dtefemdant’s wife.
    Evidence in a murder prosecution held not to require an instruction that decedent’s insulting conduct towards defendant’s wife would be adequate cause as a matter of law.
    Appeal from District Court, Marion County; R. T. Wilkinson, Judge.
    C. E. Gilmore was convicted of murder, and appeals.
    Reversed and remanded.
    T. D. Rowell and I. C. Underwood, botli of Jefferson, and French & Price, of Dainger-field, for appellant.
    
      R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. X

The judgment appealed from condemns appellant to confinement in the penitentiary for a period of 20 years for the offense of murder.

Appellant .shot and killed Lunsford War-rick.

Besides murder, the issues of manslaughter, self-defense, and provoking the difficulty were submitted.

Appellant was a son-in-law of O. I. Boules and resided at his hotel. The deceased was also his son-in-law.

There was evidence that the deceased and Pete Boules, a son of O. I. Boules, had told the appellant’s wife that his relations with a certain woman domiciled in the Todd Cottage were improper. The truth of this was denied by the appellant, and the relation of it was resented by him. His wife, upon investigation of the matter, became satisfied that it was unfounded. She persuaded the young woman in question, however, to return to her home about 12 miles distant, and took her there in appellant’s automobile. Appellant, upon learning of his wife’s intention, followed and overtook her. She was also followed by C. I. Boules and the deceased. These parties met on the public road, and an altercation took place. Boules exhibited a pistol; Warrick, a knife; and appellant, according to some of the evidence, a pistol. On returning, Boules informed appellant that he could no longer reside at his home. Appellant and his wife agreed to depart and got in their automobile with that declared intention. They stopped at Hale’s Garage in the town where they all resided and obtained some oil and water for the car. While there, Pete Boules and the deceased appeared, and the homicide took place.

It was the state’s theory that appellant acted upon malice engendered by the reports of bis .conduct made to his wife by the deceased and Boules.

Appellant was a constable and claimed to have caught the deceased and Pete Boules violating the liquor law; that they made demonstration of arms against him and threats in' the event he revealed their conduct. There is other testimony that later the deceased de'-clared that áppellant must leave town before the grand jury met and made threatening declarations against him.

The theory advanced by the appellant is that his conduct was defensive and made necessary by the aggression of the deceased and his companion, Pete Boules, and that they were inspired by the desire to prevent his indulging their law breaking before the grand jury.

There were a number of eyewitnesses to the homicide. Pete Boules, for the state, said that he and Warrick went to the garage without the knowledge of appellant’s presence; that Warrick began' the conversation and inquired where appellant and his wife were going, to which appellant replied that they were going to leave town but would return on the following day. The deceased said: “Xou wanted me to two-time something, and now I am ready to do it.” Appellant asked him to go on, stating that they were going away. The deceased repeated his remarks, when appellant got his gun and said: “I came here to kill him and I am going to do it.” His wife called for help. Appellant walked to the curb, and Warrick stepped in front of him and renewed his remark, and said: “I can two-time anything you want me to, and slap you in the mouth while I do it.” Appellant said, “Don’t touch my wife,” when deceased struck him with a stick and appellant shot.

Several witnesses for the state, who were present, described the occurrence in the main coinciding with that of Boules, but some related additional facts and controverted some of the declarations imputed by Boules to appellant. One of them, Hale, responding to the request of Mrs. Gilmore for help (she at the time being between the appellant and deceased attempting to interfere), when Pete Boules, who was present, directed that he let them alone as it was ,a family trouble; that the deceased pushed appellant’s wife away, when appellant shook his finger at him and said, “Don’t push my wife.” The deceased pushed her again and appellant slapped him with his right hand. The witness saw nothing in his hand. The deceased struck appellant with a stick and appellant shot.

According to the testimony of appellant and his wife, the deceased told appellant that he had to whip or kill him before leaving town; that he (deceased) was going to two-time what he had said; that after being told that they were going to leave town and wanted no trouble, the remarks of the deceased were in substance repeated. Appellant said he would fight him like a man if there was nothing else to do, and got out of the-car, when deceased started toward him. Appellant turned in another direction, but the deceased confronted him. Appellant’s wife sought to" interfere and called for help, and when Hale responded, Boules commanded him to desist. Appellant said that when Boules pushed Hale back, the deceased pushed appellant’s wife and said: “Damn it! Get back!” That appellant remonstrated with him and he again pushed his wife. When appellant’s wife said to appellant, “Don’t get your gun,” Boules said: “Damn him, let him have his God damn gun. Ho hasn’t got the guts to use it.” On pushing the wife back, the deceased raised the scant-ling to strike, and when he struck, appellant drew his gun and fired.

The expressions of the deceased ahout “two-time” were repetitions of the language used in the previous encounter upon the same day when deceased and his father-in-law and appellant had an altercation. It was explained that by the term “two-time” it meant repeat, and in the previous altercation the matter of deceased’s connection with the report of appellant’s wife was called in question.

There was testimony that at that time appellant said, in substance, that he was too slow but he would not be in a subsequent occasion.

The propriety of charging on the law of provoking the difficulty and the manner of so doing is questioned. At the time of the meeting at which the homicide took place, the evidence is uncontroverted that there was ill feeling between the deceased and the appellant. At an earlier hour upon the same day, an encounter had taken place in which the deceased, in company with O. I. Boules, exhibited weapons in a threatening manner and used insulting language, towards the appellant. In the same altercation appellant participated, he also, according to some testimony, exhibiting a weapon. Following this, the appellant quit the home of C. I. Boules and was in the act of going with his wife away from the town. The deceased and his companion, Pete Boules, approached them. From every angle, the testimony shows that from the beginning, the attitude of the deceased was hostile and his language insulting. From some of the testimony, his demand that appellant fight him was imperative. Appellant, responding to the request of deceased, got out of his car. The words and conduct of the deceased continued threatening and insulting. The deceased was possessed of a piece of timber. Appellant’s wife sought to interpose, and upon her solicitation bystanders sought to do so, but were prevented by Pete Boules, the companion of the deceased, who was also hostile to the appellant. It was under these circumstances that the blows began to fall. According to some of the state’s testimony, appellant first struck the deceased. Deceased responded, striking appellant with a stick and was shot by the appellant.

The court, in its charge, treated the blows as the beginning of the difficulty. In its charge, the court said:

“Now, if you believe from the evidence beyond a reasonable doubt that the defendant, just prior to the time he shot and killed the deceased, struck the deceased, and if you believe from the evidence beyond a reasonable doubt that he did so for the purpose and with the intent of provoking the deceased to attack him so that he might have a pretext for killing the deceased, etc.”

As we conceive it, the difficulty did not begin with the blows. The quarrel was initiated by the deceased. His manner and languáge following the previous encounter upon the same day, and viewed in the light of the evidence of communicated threats, demanded some defensive action on the part of the appellant. Even if the court was warranted in ignoring all that occurred antecedent to the striking of the .blows, there was an issue of fact as to who struck first. From the state’s standpoint, at this point appellant used a pistol and the deceased a heavy timber or stick. Viewed in this light, the case apparently would not come within the law requiring a charge upon provoking the difficulty. That issue arises when the deceased is the first assailant, and when his action results from some previous conduct or words of the accused, calculated and intended to provoke an attack, but does not arise when the controversy is who began the attack. Burnett v. State, 51 Tex. Cr. R. 21, 100 S. W. 381; Carlile v. State, 232 S. W. 822; Branch’s Crim. Law, § 466.

The words and conduct of deceased, including his previous threats, as bearing upon the law of provoking the difficulty, were eliminated by the charge given. Moreover, the conduct of Peté Boules as an actor in the difficulty was an element in the issue of self-defense ignored in the charge. There is evidence from the witnesses of both the state and the appellant that Boules was an actor in the tragedy, at least, to the extent of deterring bystanders from preventing the-conflict. He was an enemy of the appellant, and according to the appellant’s theory, was-a coactor with the deceased in the violation of the liquor laws. The jury may have believed that the motives that actuated the deceased and Boules wpre identical. Their presence together, their conduct, and concert of action hostile to the appellant, were available in order that the jury might determine, from his standpoint at the time, the conditions that confronted him when the fatal shot was fired. It may be that in the difficulty he used undue force or acted with unwarranted haste. He may be culpable, but in passing upon his guilt and measuring, his punishment, we think the charge given upon provoking the difficulty was not warranted. McCandless v. State, 42 Tex. Cr. R. 58, 57 S. W. 672; Lucas v. State, 49 Tex. Cr. R. 138, 90 S. W. 880 ; Saens v. State, 20 S. W. 739.

In the state of the record and qualification-of the law of self-defense by a charge upon-the law of provoking the difficulty is of more than doubtful propriety. It would be extremely difficult to prepare such a charge- and safeguard the rights of the appellant to act upon the appearances of danger growing out of the conduct of the deceased and his companion, Pete Boules, antecedent to the time that there were blows struck. No reference to threats made by the deceased, and communicated to tlie appellant was made in the charge, either separately or in connection with the paragraph on self-defense. This was complained of and special charges were requested seeking to correct it. According to appellant’s testimony, at the time he discovered the deceased and Pete Boules violating the prohibition law, they each exhibited weapons, and Pete Boules said: “God damn you! If you tell on me I will kill youf’ There was 'evidence that about a week before the homicide, deceased said:

“Gilmore has to leave town before the grand jury meets or I will put him out. If any other son of a bitch like him wants to squeal on me, he had better get out of the way.”

This was communicated to the appellant.

Mrs. Gilmore testified that in the altercation occurring on the same day the deceased said: “Who has been telling these God damn lies on me will have to two-time” and opened his knife, and O. I. Boules presented a pistol.

According to appellant, when he informed the deceased that he was leaving town, deceased said: “You are not going anywhere until you two-time those God damn lies or whip or kill methat he said further: “I am ready to two-time those God-damn lies and slap you in the mouth.” When appellant asked the deceased to let him alone and appellant’s wife told him not to get his gun, both Warrick and Pete Boules said: “Let him get his God damn gun. He hasn’t got nerve to use it” About this time, Hale, responding to the appeal of Mrs. Gilmore, took hold of the appellant’s sleeve, when Pete Boules shoved him'back and said: “Get back! This is a family affair. Let the family settle it.” Deceased pushed Mrs. Gilmore back and said, “Get back out of the way,” and raised up a scant-ling and struck the appellant on the arm. According to appellant’s testimony, he fired believing that Pete Boules intended to shoot him if the deceased did not knock him down. Under this evidence, we think the court should have charged on the law of communicated threats in connection with the law of self-defense. Penton v. State, 53 Tex. Cr. R. 323, 109 S. W. 937; Thomson v. State, 49 Tex. Cr. R. 384, 93 S. W. 111; Alexander v. State, 25 Tex. App. 266, 7 S. W. 867, 8 Am. St. Rep. 428; Branch’s Crim. Law, § 482.

The connection of Pete, Boules with the conflict was» such as to require the court, upon request, to instruct the jury in a manner that they would understand that if, viewed from his standpoint, the appellant was in danger from both Boules and the deceased, he might embrace both in his defensive efforts. Stacy v. State, 48 Tex. Cr. R. 97, 86 S. W. 327, and other cases in Branch’s Crim. Law, § 450. The admissibility of the testimony to the effect that immediately after the shooting, Mrs. Gilmore, wife of appellant, exclaimed, “You told me you were going to kill him, and now you killed him,” is challenged. It is insisted that the admission of this testimony was inhibited under the rule which excludes confidential communication between the husband and wife. We regard the contention as untenable. The declaration apparently was properly admitted as res gestae. Cole v. State, 48 Tex. Cr. R. 445, 88 S. W. 341. It was not the use of the testimony of the wife. It was proved to be her declaration from the lips of another. She would not have been a competent witness to testify, to it but that fact does not render proof of her res gestae declaration inadmissible. Cole v. State, 48 Tex. Cr. R. 445, 88 S. W. 341; Cook v. State, 22 Tex. App. 525, 3 S. W. 749; Thompson v. State, 77 Tex. Cr. R. 417, 178 S. W. 1195; Robbins v. State, 73 Tex. Cr. R. 367, 166 S. W. 529; Cole v. State, 51 Tex. Cr. R. 89, 101 S. W. 218. Moreover, the wife’s declaration ceased to be confidential when made in the presence of others. Wharton’s Crim. Evidence, vol. 1, § 39.8. Mrs. Gilmore testified that the remark made was not that imputed to her, but that she exclaimed: “I asked you to help me, and you would not do it, and now he has killed Shorty, and it could have been avoided so easy.” There was evidence, also, that at the time appellant got out of the car, he said in the presence of his wife that he intended to kill the deceased. Granting that she made the remark, as claimed by the state, it does not follow that it would be referable to any previous conversation or confidential communication with the appellant, but more naturally it would relate to that which took place immediately preceding the homicide in the presence of the bystanders. Her declaration, publicly made, was not denied by the appellant at the time. It was in the nature of an ' accusation in which his acquiescence might be inferred from his silence. For these additional reasons, we are of opinion that there was.no error in receiving the testimony.

The complaint of the receipt in evidence of circumstances tending to show that appellant was on terms of intimacy with the woman referred to by the deceased in his conversation with appellant’s wife is not tenable. This evidence, however, we think, was not admissible upon the issue of suspended sentence. Such use of it would carry inquiry into specific acts beyond legitimate bounds. Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360; Baker v. State, 87 Tex. Cr. R. 305, 221 S. W. 607: Fountain v. State (No. 6451) 241 S. W. 489, not yet [officially] reported. The evidence had legitimate bearing, however, upon the controverted issue as to the real cause of the unfriendly relations between the deceased and the appellant. The alleged conduct of the deceased towards appellant’s wife was a proper matter for the consideration of the jury on the general issue of manslaughter, but the court did not err in refusing to tell the jury that the insulting conduct toward the female relative of appellant would be adequate cause, as a matter of law. The evidence, we think, does not raise that issue.

Other question's presented are such as will probably not arise upon another trial. We pretermit a discussion of them.

Eor the reasons indicated, the judgment of conviction is reversed and the cause remanded. 
      other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     