
    LEWELLEN v. STATE.
    (No. 10150.)
    (Court of Criminal Appeals of Texas.
    May 12, 1926.
    Rehearing Granted June 25, 1926.)
    1. Criminal law &wkey;800(7), 823(6) — Charge predicating right of self-defense on “unlawful” attack, without defining it, held misleading but not reversible error, in view or charge as a whole.
    Charge predicating right of self-defense on “unlawful” attack, without defining what was meant by unlawful, held subject to criticism, though not requiring reversal as misleading in view of charge as whole.
    2. Criminal law <&wkey;459 — Testimony that ruler placed in depression in wail made by bullet would point in certain direction held admissible as against objection as opinion.
    Admitting testimony that by placing ruler in depression in wall made by bullet it 'would point in certain direction 'held not error; objection that it was permitting witness to give opinion about matter not requiring expert testimony going more to its weight than its admissibility.
    On Motion for Rehearing.
    3. Homicide <&wkey;300 (3)— Charge limiting right of self-defense by theory of provoking difficulty should tell jury not only that defendant with intent said or did things calculated to bring on difficulty, but that they did so.
    Charge limiting right of self-defense by theory of provoking difficulty should tell jury not only that they must believe defendant, with intent to bring on the difficulty or cause an attack which he might use as pretext for killing, did or said things reasonably calculated to accomplish that object, but also that they must further believe that difficulty was caused or attack brought on by such words or conduct of defendant.
    4. Homicide <&wkey;>300(l3) — Charge by certain words held not to tell jury they must believe difficulty was caused or attack brought on by defendant’s words or conduct.
    Charge on provoking difficulty by expression, “and that defendant provoked a difficulty with deceased,” held not to tell jury as it should that they must believe that difficulty was caused or attack brought on by defendant’s words or conduct. ,
    5. Homicide &wkey;>300(l3)— Charge given held not the necessary affirmative presentation of converse of charge on provoking difficulty.
    Merely telling jury that if they do not find beyond reasonable doubt that defendant provoked the difficulty his right of self-defense would not be limited is not the necessary af7 firmative presentation of the converse of the charge on provoking the difficulty.
    6. Homicide &wkey;»300(3).
    Matters stated in charge on provoking difficulty as affirmatively indicating purpose and intent of defendant to bring on difficulty should be referred to in charge on converse and expressly negatived.
    Commissioners’ D'ecision.
    Appeal'from District Court, Bell County; Lewis H. Jones, Judge.
    John Lewellen was convicted of murder,- and be appeals.
    Reversed and remanded.
    De Witt Bowmer, of Temple, J. P. Taulbee, of Georgetown, and W. W. Hair, of Temple, 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 in the district court of Bell county for murder, and bis punishment assessed at 25 years in the penitentiary.

This is. the second appeal to this court. The first will be found in 90 Tex. Cr. R. 588, 236 S. W. 987. In the former appeal, the statement of the case is fully set out, and we deem it unnecessary to reiterate the facts on this appeal.

In bill No. 1 complaint is made to the court charging the jury on provoking the difficulty, the objection being to the effect that the evidence did not raise this issue. This contention was decided against the appellant by this court upon the former appeal, and also in the case of Joyce v. State, a companion case, 90 Tex. Cr. R. 265, 234 S. W. 896. The appellant also complains in said bill to the effect that if the court was right in charging on provoking the difficulty, he erred in charging the jury therein to the effect that, “If you believe from the evidence beyond a reasonable doubt that defendant went back into the restaurant, where' the deceased was killed, and by his own wrongful act (if any there was) brought about the necessity of killing the deceased, and that the defendant provoked a difficulty with the deceased, with the wrongful and willful intent,” etc., instead of charging the jury that if they believed beyond a reasonable doubt that the acts or words, or both, of the appellant caused the deceased to attack the defendant, etc., then the right of self-defense would no't avail. In support of this contention the appellant cites Stacy v. State, 48 Tex. Cr. R. 95, 86 S. W. 327; Smith v. State, 48 Tex. Cr. R. 203, 87 S. W. 151; Burkhardt v. State, 83 Tex. Cr. R. 228, 202 S. W. 514; Cottom v. State, 91 Tex. Cr. R. 534, 240 S. W. 919. We are of the opinion that the authorities cited announce the proper principles of law, and that the opinion of this court in the case of Mason v. State, 88 Tex. Cr. E. 645, 228 S. W. 952, fully sets out in detail the three requisites for the trial court to charge on provoking a difficulty. However, the difficulty we find in appellant’s contention is not what the law is on the subject, but whether or not the court’s charge on this point was sufficient to meet the requirements of the law on this issue. The trial court was evidently attempting to follow the authorities cited by the appellant and the Mason Case, supra, and the charge, on the point criticized, that “the defendant provoked a difficulty with the deceased,” etc., was equivalent to charging that the conduct, words, or acts must have caused the attack. Even if said, charge as quoted, was error, we do not think it was of such a prejudicial nature as to cause a reversal of this case, under article 666, 1925 C. C. P. (article 743 of the old Code), which prohibits this court from reversing a judgment of the lower court on his. charge unless same is calculated to injure the rights of the appellant or show that he had not had a fair and impartial trial.

The appellant also criticizes that portion of the charge on the converse of provoking the difficulty, contending that the court did not affirmatively charge the jury on this issue, but did so negatively. The court charged the jury, in effect, that if they failed to find from the evidence beyond a reasonable doubt that the defendant provoked the difficulty with the deceased, under the circumstances above stated, then the defendant’s right of self-defense would in no way be limited. While this charge is brief, and does not repeat the circumstances and the issues as set out in the charge relative to provoking the difficulty, we think the reference thereto is equivalent to restating them in this portion of the charge. At any rate, we think that the objection raised is insufficient to call for a reversal of the case, under the statute, supra.

The appellant also complains at and criticizes the court’s charge on manslaughter and murder, found in paragraphs 7 and 11 of said charge. We are of the opinion that the charge, taken as a whole, is not susceptible to the criticism urged.

Complaint is also urged to the charge of the court, paragraphs 7 and 11 thereof, in which the court, in effect, charged the jury, in submitting these issues, of the law, that if same was not in defense of himself against an unlawful attack producing a reasonable expectation, etc., the defendant contending that it was error to use the word “unlawful,” as the appellant had a right to defend himself against any attack upon the part of the deceased, and the jury was likely to be misled by what the court meant by unlawful, and that the court, at least, should have defined to the jury what was meant by unlawful and unlawful attack. We think this charge is not free from the criticism urged, but that it is not of sufficient importance to require a reversal of the case, and that, taken as a whole, the jury was not misled by the use of the language employed by the trial judge.

Complaint is urged, in bill No. 2, to the action of the court in permitting the witness, Bond, to testify, over appellant’s objection, that by placing a ruler in one of the depressions made in the wall of the building by the bullet, it would point in a certain direction. Appellant contends that same was prejudicial and inadmissible, and was permitting the witness to give his opinion about a matter which did not require any expert testimony. We are of the opinion that the objection goes more to the weight of the testimony than to the admissibility of same, and that the court committed no error in admitting same.

After a careful examination of the entire record, we are of the opinion that there is no reversible error shown, and that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

PEE CTJEIAM.

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

On Motion for Eehearing.

LATTIMOEE, J.

The trial court gave the following charge on provoking the difficulty:

“You are further instructed on the issue of self-defense in this case that if you believe from the evidence in this ease, beyond a reasonable doubt, that the defendant went back into the restaurant the second time where the deceased was killed, and by his own wrongful act (if any there was) brought about the necessity of killing the deceased, and that the defendant provoked a difficulty with the deceased, with the wrongful and willful intent to take the life of deceased, or to.inflict upon him serious bodily injury, and you further find that the defendant knowingly and willfully and with the specific intent to kill the deceased, and with a view thereto used towards deceased language or did acts, or did both, for the purpose of causing deceased to attack defendant that he might have a pretext to kill him or inflict upon deceased serious bodily injury, and yon further find such language or conduct or acts on the part of the defendant (if any there was) was reasonably calculated to bring on the difficulty and cause the deceased to attack the defendant, and you further find from the evidence, beyond a reasonable doubt, that the defendant in pursuance of a wrongful, willful, and previously formed design to provoke a difficulty with deceased for the purpose and with the intention of killing him or inflicting upon him serious bodily injury, and you further find from the evidence beyond a reasonable doubt that intentionally and with a view thereto the defendant shot with a pistol the deceased and thereby killed deceased, then you are instructed that the defendant’s plea of self-defense will not avail him in this case, and if you find from the evidence beyond a reasonable doubt, the homicide would be murder under the law.”

This was excepted to for various reasons. As we understand the authorities on the subject,of provoking a difficulty, where the right of self-defense is limited by a charge presenting this theory, the jury should be told not only that they must believe that the accused, with intent to bring on the difficulty or cause an attack which he might use as a pretext. for killing or injuring the deceased, did or said things reasonably calculated to accomplish that object, but such charge in some way should tell the jury that they must be: lieve further that a difficulty was caused or an attack brought on by such words or conduct of the accused. We fail to find anywhere in this charge such instruction. The expression, “and that the defendant provoked a difficulty with the deceased,” is not deemed sufficient to make clear, to the lay mind at least, that the acts and conduct of the accused relied upon must have actually caused a demonstration or an attack by deceased or brought on the difficulty, and the coupling with the expression just quoted the reference to the defendant’s going back into the restaurant a second time and by his own wrongful act ■bringing about the necessity of killing deceased, could easily have left the jury under the belief that the going back into the restaurant the second time might be taken as a wrongful act on the part of appellant. The further expression in said charge, “and you further find from the evidence beyond a reasonable doubt that intentionally and with a view thereto the defendant shot with a pistol the deceased and thereby killed deceased, then you are instructed that the defendant’s plea of self-defense will not avail him,” is of such confusing import and connection as to lead us to believe it must reflect some-error in the transcription, for if correctly set out in the transcript this statement would appear most hurtful to the rights of appellant.

Nor do we think the court affirmatively gave the converse of the charge on provoking the difficulty, as was his duty following the submission of that theory of the case. To merely tell the jury that if they do not find b&yond a reasonable doubt that appellant provoked the difficulty his right of self-defense would not be limited would hardly be a sufficient affirmative presentation of such converse. The jury should Rave been told that unless they believed beyond a reasonable doubt that the accused at the time or reasonably near the time of such homicide did deeds or said words reasonably calculated to bring on a difficulty or cause deceased to make an attack upon him, ancf even though they so believed, yet unless they further believed that such words and acts, if any were said and done, were with intent on the part of the accused to thereby bring on such difficulty or cause such attack, and that they further believed that such acts and words of the accused did' in fact cause the difficulty or bring on the attack, then that such conduct on the part of appellant would not deprive him of his right of self-defense. We are not intending to - lay this down as a form of charge necessarily to be followed, but merely as indicating our view that those matters stated in the charge on provoking the difficulty as affirmatively indicating the purpose and intent of the accused to bring on the difficulty, should be referred to in the charge on the converse, and the matters affirmatively presented be there expressly negatived.

Believing that the charge in this case is wrong, and that the error is of such nature as that it may have materially injured the rights of the accused, and that we erred in not so holding in the original opinion, the motion for rehearing will be. granted, the judgment of affirmance set aside, and the judgment now reversed and the cause remanded. 
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