
    TURNER v. STATE.
    (No. 6784.)
    (Court of Criminal Appeals of Texas.
    Dec. 13, 1922.)
    1. Criminal law <®=!09l(2) — Bill of exceptions itself must show facts from which it appears that error was committed;
    Unless there be • some showing of facts in the bill of exceptions itself, independent of the statement of facts from which it reasonably appears to the appellate court that error was committed in the matter complained of, such hill will present no error.
    2. Homicide <©=300 (8) — Evidence held to justify charge on provoking difficulty.
    In a murder prosecution, evidence held to justify submission of instruction on provoking difficulty.
    3. Criminal law <§=844 (1) — If instruction not in form desired by defendant, exception should be directed thereto. i
    Where an instruction on provoking difficulty sufficiently submitted the converse of the matters stated, but was not in the form desired by defendant, an exception should have been directed at the matter of form.
    4. Homicide <©=300 (8) — Evidence supported instruction that, if deceased’s threat was only to whip defendant, he would not be justified in using more force than necessary to repel assault.
    In a murder prosecution, where there was no language of deceased of a threat of anything more serious than an intention to whip defendant, it supported an instruction that if threats were not to take life, but merely to assault and whip, then defendant, would not be justified in using more force than reasonably appeared to him, viewed from his standpoint, necessary to repel the assault.
    5. Homicide <©=309 (4) — Evidence insufficient to justify instruction that defendant was guilty of manslaughter unless using only force necessary to repel assault.
    In a murder prosecution, where there was evidence that deceased struck defendant with a stick at which time defendant struck with a knife, evidence held ■ insufficient to justify an instruction that defendant should be convicted of manslaughter, unless he used only such force as was reasonably necessary to repel the attack.
    
      Appeal from District Court, Wood County; J. R. Warren, Judge.
    Y. C. Turner was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    R. E. Bozeman, of Quitman, and Jones & Jones, of Mineóla, for appellant.
    W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

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

The transcript and statement of facts in this case are quite voluminous, and the testimony adduced at the trial is conflicting in many ways. It appears from the record that deceased was a young man and that appellant was somewhere near the same age, apd that the two boys had been friends until a few weeks before the homicide, a difficulty having then arisen between them which was aggravated by stories carried apparently from one to the other by outside parties. A meeting was had between appellant and deceased at a store at Coke, a postoffice or little town not very far from the scene of the killing, on Saturday afternoon before the killing, which took place on Sunday. What occurred between the two at Coke was the subject of some dispute, and appellant sought a continuance in order to obtain the presence of a witness by the name of Paulk. In support of his motion for a new trial after conviction, appellant presented the affidavit of Paulk, in which he stated the facts substantially as same were set out in the application for continuance.

A great many bills of exception were taken by appellant during the trial, many of which are subject to the criticism that they do not set out sufficient facts antecedent to nor surrounding the matter presented as objectionable, to enable this court to appraise the weight or seriousness of the objection urged. We have often called attention to the plain statement of the statutes in regard to what must appear in a bill of exceptions,' and in many instances have ourselves attempted to set forth rules governing the preparation of such bills. Unless there be some showing of facts in the bill itself, independent of the statement of facts, from which it reasonably appears to this court that error was committed in the matter complained of, such bill of exceptions will present no error which can be upheld.

The trial court gave to the jury an abstract statement of the law applicable to the theory of the provoking of the difficulty on the part of appellant, both as applied to murder and manslaughter; and further in the charge in applying the law to the facts again presented the law of provoking the difficulty as applicable both to murder and manslaughter. The conviction was for manslaughter. As applicable to this degree of homicide the court charged as follows:

“If, however, he sought the meeting with the deceased for the purpose of giving him a whipping, and in order to produce the occasion or bring on the difficulty for that purpose he did some act or used some language, or did. both, and that, such acts or language, if any or both, were reasonably calculated tp provoke a difficulty, and. on such account the deceased attacked him, and he then cut and thereby killed deceased, in such event be would 'be guilty of manslaughter, and this would be true even though the attack by deceased so brought on produced in defendant’s mind a reasonable apprehension of death or serious bodily injury; but if he did not seek deceased for the purpose of giving him'a whipping or if he did seek him for that purpose, but did not act or used no-language reasonably calculated- to provoke a difficulty, then his right of self-defense would be complete.”

Appellant urges there are no facts calling for the submission of -such charge. We regret we cannot agree to this contention. It is without dispute in the record that appellant and deceased had previous misunderstandings, and that just before the killing they, with two other boys, were engaged in conversation, apparently on friendly terms, though the state contends that said meeting was brought about by appellant or by appellant aiid one Verdie Powell, in order to make said meeting furnish an opportunity for the settlement of the differences between appellant and deceased. Appellant, deceased, Ver-die Powell, and Jack Kennemer were present. Wei state what took place when deceased started to leave this meeting, as same is presented in the dying declaration of deceased, given in testimony by Claude Kennemer. He stated that he got up and started away, and Powell called to him and said that he wanted to see deceased ,and appellant-settle their difference; deceased replied, all right; if there was any difference he wanted to settle it, hut thought it was settled the evening before. Appellant then said, “You G-d d-n liar, you don’t think no such.” Deceased replied that he did, and appellant said, “You don’t,” and called deceased a damn liar two or three more times and threatened to cut his throat. Deceased had a stick and. at this juncture both hoys struck — deceased with a stick and appellant with his knife. Prom the effects of this blow deceased later died. Fx-orn the testimony of Jack Kennemer, an eye witness, it appears that after the Powell boy called deceased back, and appellant had called him a damn liar, and deceased had replied that he was no liar, and appellant had said he would cut the throat of deceased, that appellant then kind of leaned forward and said, “You know you are a damned liar,” and deceased raised up to strike him, and appellant threw up his left arm and cut deceased with his right. Deceased struck appellant with the stick at or about the same time that the cutting was done, and the stick broke, and deceased threw the remainder of the stick at him and ran. With this evidence before him, the trial court did not err in charging on the provoking of the difficulty.

Many cases might be cited holding substantially that where the accused cursed deceased, or called him vile nhmes, or abused him, and the latter made an attack and was killed as a result, a charge on provoking the difficulty was held proper. Bateson v. State, 46 Tex. Cr. R. 46, 80 S. W. 88; Coleman v. State, 49 Tex. Cr. R. 357, 91 S. W. 783; Tardy v. State, 47 Tex. Cr. R. 444, 83 S. W. 1128; Best v. State, 61 Tex. Cr. R. 554, 135 S. W. 581; Sanders v. State (Tex. Cr. App.) 85 S. W. 1147; Brown v. State, 85 Tex. Cr. R. 493, 213 S. W. 658; Dugan v. State, 86 Tex. Cr. R. 130, 216 S. W. 161; Mickle v. State, 88 Tex. Cr. R. 405, 227 S. W. 491. The exception to the charge upon the ground that same did not submit the converse of the matters stated as raising the issue of provoking the difficulty is without merit. An examination of that part of the charge above quoted shows such converse to have been submitted, and, if not in the form desired, ap exception should have been directed at' the matter of form.

In charging the law of threats, the trial court also told the jury that:

“If the threats, if any, wore not to take life or do serious bodily injury, but merely threats to assault or whip the defendant, then in such case the defendant would not be justifiable in using more force than reasonably appeared to him, viewed from his standpoint, necessary to repel the assault.”

This was excepted to as not finding sup-: port in the testimony, but as we read the record there nowhere appears any language of a threat by deceased of anything more serious than an intention to whip appellant if he repeated certain conduct. The objection to the charge, that it omitted to tell the jury that the matter must be viewed from the standpoint of appellant, was met ' by the interlineation in the charge of the court of the omitted statement.

There appears another exception to the charge of the court which presents a more serious proposition. Appellant objected to that portion of paragraph 11 of the charge which reads as follows:

“If, however, the attack or threatened attack, if any, was such under the -circumstances as to create in the mind of the defendant a reasonable apprehension and belief that the deceased was only intending to give defendant a whipping, then if you .further find that. the defendant used more force than was necessary in repelling the attack, if any, and thereby cut and killed the deceased, he would be guilty of manslaughter.”

The exception to this- charge was that it was not warranted by the testimony, it being .stated that the proof showed that the attack made or- about to be made by deceased upon appellant was with a stick, which was a weapon reasonably calculated to produce death or serious bodily injury. We would not be inclined to think the charge last above set out improper if called for by the facts. What were the facts in the instant case upon which such charge might be based? It is undisputed in the record that deceased carried with him to the place of the fatal encounter, and used in the difficulty, a stick called by some witnesses a broom stick, and which was admitted by both the state and appellant to be a stick 36 inches in length, 3½ inches in circumference at one end and 3 at the other, and 2½ inches in circumference in the middle, the weight of the stick being 11 ounces. It was in testimony that there was a knot or bruise on the wrist and also on the head of appellant after the encounter. He and Powell claimed this to have been made by a blow struck by deceased with said stick immediately preceding the cutting. Deceased in his dying declaration admitted striking appellant with said stick. A. T. Cook and B. F. Powell testified that after the cutting, and referring thereto, deceased said he intended to kill the s——n of a b——h, but the stick broke, and that if he got well he intended to kill him.

We have carefully examined the dying declaration of deceased, and also the testimony i of the eyewitnesses, in an effort to ascertain if there be found acts and conduct of deceased at the time of the fatal difficulty which could be made the basis of an inference that it reasonably appeared to appellant that the purpose of deceased in what hei did was merely to assault or whip appellant, but confess we have been unable to find same. As we view the record and understand the facts, there is not sufficient testimony to justify an instruction to the jury that the appellant should be convicted of manslaughter unless he used only such force as was reasonably necessary 'to repel the attack made upon him by the deceased. The submission of such issue could hardly fail to be injurious to appellant. His right of self-defense was sufficiently restricted by the charge on provoking the difficulty, without further telling the jury that, if it appeared to appellant that deceased intended to whip him, he could use only such force as was-reasonably necessary to repel such attack. It would apparently be difficult, under the facts, to conclude just what force would be necessary to repel such attack. If the state’s theory was true, and appellant provoked the difficulty, his right of self-defense was abridged, and he could not claim justification for his act. If the defensive theory was true, and deceased brought on the difficulty and cursed appellant and Struck him with a stick apparently capable of inflicting serious bodily injury, be was entitled to have an affirmative presentation of tbe law applicable to such state of facts.

We tbink tbe testimony of tbe absent witness Faulk was material, and that, in view of tbe affidavit attached to appellant’s motion for a new trial, said motion should have been granted, but, as a discussion of tbe proposition would elucidate no legal point, we refrain therefrom.

We do not tbink any of tbe other bills of exception contained in tbe record present reversible error, but, for tbe giving of tbe charge above mentioned and tbe refusal of tbe motion for new trial, tbe judgment must be reversed, and tbe cause remanded; and it is so ordered. 
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