
    GOREE v. STATE.
    (No. 10593.)
    Court of Criminal Appeals of Texas.
    March 9, 1927.
    Rehearing Denied April 27, 1927.
    1. Homicide <S=>300(8) — Evidence in murder trial held to warrant charge on provoking difficulty.
    Evidence in murder trial that defendant, without invitation and with drawn pistol, entered room where deceased was reading and informed deceased that he had heard of his threats against defendant, held sufficient to warrant charge on provoking difficulty, where self-defense was relied on.
    2. Criminal law 1120(8) — Bill of exception stating no facts showing Injury to defendant by admission of certain testimony showed no error.
    Bill of exception setting out no facts warranting inference of injury to defendant by testimony as to seeing defendant’s sister, on morning before evening of killing, write and post letter to defendant’s mother, showed no error in admission thereof.
    3. Criminal law @=l 120(4) — Bill of exception not setting out testimony showed: no injury by admission of testimony as to observing matter inquired about.
    Bill of exception, not setting ont sheriff’s testimony as to defendant’s condition or appearance while under arrest on night of homicide, showed no injury to defendant by admission of sheriff’s testimony that he observed whether defendant appeared worried, disturbed, or composed.
    4. Criminal law @=l 144(12) — Presumption is that trial court correctly admitted testimony, in absence of contrary showing.
    In absence of showing to contrary, presumption prevails that trial court ruled correctly in admitting testimony.
    5. Criminal law @=665(4), 1153(5) — Admitting testimony of witness not subjected to rule is , largely within trial court’s discretion, only reviewable for abuse.
    Admitting testimony of witness, who heard evidence after rule was invoked, is left largely to discretion of trial court, whose action will not he reviewed in absence of abuse.
    6. Criminal law @= 1119(2) — Bill of exception to admission of testimony of witness not kept under rule held, to show no injury to defendant.
    Bill of exception to admission of testimony of deceased’s sister, who had heard evidence though rule had been invoked, that she lived with deceased in another state and that he'was charged with no offense during such time, held insufficient to show injury to defendant.
    On Motion for Rehearing.
    7. Homicide @=300(8) — To warrant charge on provoking difficulty, accused must have knowingly said or done something reasonably calculated to lead to affray and resulting in attack or demonstration.
    To warrant charge in murder trial on issue of provoking difficulty, as distinguished from that as to who began difficulty, there must be evidence that accused, after meeting his adversary, willingly and knowingly said or did something reasonably calculated to lead to affray or deadly conflict, and that attack or demonstration was made as result of such provocation.
    8. Homicide @=276 — Accused’s intent in entering deceased’s home with drawn pistol and accusing him of making threats held for jury under appropriate instruction on provoking difficulty.
    In murder trial, accused’s intent in going to deceased’s home with drawn pistol and accusing deceased of making threats against him, held for jury under appropriate instruction qualifying right of self-defense by charge on law of provoking difficulty.
    9. Homicide @=300(3) — Accused’s right to interview deceased and demand explanation of reported threats without forfeiting right of self-defense held sufficiently guarded-by charge that arming himself would not forfeit such right.
    Defendant’s right to interview with deceased and explanation of latter’s reported threats without forfeiting right of self-defense held sufficiently guarded by charge that he would not forfeit such right by arming himself.
    10. Criminal law @=822(8) — Failure to instruct jury that defendant’s arming would not necessarily deprive him of right of self-defense held not error, in view of court’s charge as a whole.
    Failure of charge on provoking difficulty to instruct jury that fact that defendant was armed would not necessarily deprive him of right of self-defense held not error, where such subject was specifically embraced in court’s charge, which must be appraised as whole.
    11. Criminal law @=823(6) — Charge not informing jury that right of self-defense would not arise unless defendant was attacked held not reversible error, in view of court’s charge.
    Charge in murder trial to decide issue of self-defense without reference to law on provoking difficulty, if defendant’s acts or language were not reasonably calculated or intended to provoke difficulty or attack by deceased, held not reversible error, as not informing jury that right of self-defense would not have been justified unless defendant was attacked, particularly in view of court’s charge that such right would not be impaired unless things said and done are reasonably calculated to and do cause deceased to attack defendant.
    Commissioners’ Decision.
    Appeal from District Court, Jones County; Bruce Bryant, Judge.
    Finis Goree was convicted of murder, and he appeals.
    Affirmed.
    Stinson, Coombes & Brooks, Roy B. Duke, and T. J. McMahon, all of Abilene, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of murder, and his punishment assessed at 25 years in the penitentiary.

The record discloses that the appellant was the son-in-law of the deceased, S. C. MeClur-kan, and that prior to the homicide appellant, who was supposed to be suffering from tuberculosis, left his wife and. small child in Jones county and went to the vicinity of San Angelo for the purpose of taking treatment, and that after remaining there for a short time he returned to the home of his father, which was in the neighborhood of deceased’s home. It was the contention of the state, and evidence was introduced to that effect, that the appellant, about sundown on the day of the homicide, entered the resi-denee of deceased with a pistol in his hand, walked into the room where deceased sat reading in the presence of appellant’s wife and her sister, Mrs. McCormick, and informed deceased that he had heard of the threats which deceased had made against him, to which the deceased, after some hesitation,' replied that he had not made any threats, whereupon appellant, without provocation, shot and killed the deceased as he sat in the chair where he had been reading. The appellant defended upon the ground— and he so testified and introduced other evidence to that effect — that when he left home to go to San Angelo on account of his tubercular trouble he and his wife were on good terms; that after he reached San Angelo he received information through his mother to the effect that his wife had informed her that she could not live any more with the appellant under the circumstances, that her father did not want her to do so, and that she was going to take the baby and leave, and that on the day preceding the homicide deceased informed appellant’s brother that he did not want appellant around his premises any more, and that if appellant came around his premises again he would kill him. It was also the contention of the appellant that on the evening of the homicide he saw a letter purported to be from the deceased to appellant’s father and which, in substance, requested that appellant stay away from his premises and stated that a failure to do so would result in appellant’s death. The appellant also testified that said threats and the thought of deceased’s attempts to separate him from his wife and child preyed upon his mind until he decided to arm himself against an attack by the deceased and seek an explanation as to why deceased was attempting to separate him and his family. He further testified that upon entering the room where deceased sat he informed deceased that he had come to see his wife and child; that the deceased reminded him of the fact that he had sent him word to keep off the premises; and that the deceased was advancing towards him with a drawn hammer, and deceased’s son-in-law, McCormick, was entering the room with a gun, when appellant, according to his contention, shot and killed deceased in self-defense.

The record contains 13 bills of exception, but from the brief and argument of appellant’s counsel we infer that the serious questions urged upon this appeal are relative to the action of the court in charging the jury on the law of provoking the difficulty, and the alleged refusal of the court to charge sufficiently the law applicable to the facts relative to his right to arm himself and seek an explanation from deceased. After a careful examination of the appellant’s contention, we find ourselves not in accord therewith. We think the state’s testimony, showing that the appellant, without invitation and with a drawn pistol, entered the residence and room where deceased was reading and informed deceased that he had heard of the threats made by deceased against him, was sufficient to call for a charge on provoking the difficulty, where self-defense was relied on by the appellant.

We are also not in accord with the appellant’s contention to the effect that the court failed to charge sufficiently the law applicable to the facts relative to the right of appellant to arm himself, to seek an explanation of deceased, and to see his wife and child. We are of the opinion that the charge is not open to the obj'eetion and criticism urged against it, as the court, in his general charge, seems to have given sufficiently the law applicable to the facts and issues raised on this phase of the case. Presumably, the court amended his charge to meet this objection.

In bill of exception No. 13 the appellant complains of the action of the court in permitting the witness Cora McClurkan to-testify, over his objection, that on Tuesday morning prior to the killing that evening she saw her sister, wife of the appellant, write and place in the mail box a letter addressed to Mrs. W. T. Goree, mother of the appellant. This bill fails to set out any facts from which we could infer or see that injury resulted- to the appellant by reason of this testimony, and, as presented, shows no error.

Bill No. 14 complains of the action of the court in permitting the state to prove by the sheriff, Hudson, that while the appellant was under arrest on the night of the homicide, he, the witness, observed appellant’s condition, as to whether he appeared worried, disturbed, hr composed. This bill fails to set out what the sheriff testified, if anything, relative to appellant’s condition or appéarance, and we are therefore unable to determine from the bill as presented whether any injury resulted to the appellant, or otherwise. In the absence of a showing to the contrary, the presumption prevails that the trial court ruled correctly.

Bill No. 15 complains of the action of the court in permitting the state to show by the witness Mrs. R. A. Sledge, sister of the deceased, that she lived with deceased in the state of California and that he was charged with no offense during said time. The objection urged to this testimony was that the rule had been invoked and said witness had heard the evidence introduced on the trial of the ease before being called to testify. This court has repeatedly held that such matters are left largely to the discretion of the trial court, and, in the absence of any abuse of said discretion, his action will not be reviewed. Furthermore, the bill as presented, is insufficient to show any injury to-the appellant by reason of the admission of this testimony.

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

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

On Motion for Rehearing.

MORROW, P. J.

According to the testimony of the appellant, he and the deceased, on several occasions, antecedent to the homicide, had had wordy altercations. During the absence of the appellant, his wife (daughter of deceased) had taken her child and gone to the home of her father. According to the appellant, he had been told that his life had been threatened by the deceased, and, desiring to have the matter explained, he armed himself and went to the home of the deceased. According to his testimony, appellant entered the front door and deceased said: “What are you doing here?” .Appellant replied : “I have come to see about my wife and baby.” Deceased said: “Didn’t I send you word never to cross my path or come down here and to stay away from hepe?” Appellant replied: “Tes, sir; I haven’t seen my wife and baby in this time.” Deceased said: “I told you not to come down here. Get out.” About this time Frankie McCormick left the room, and her husband entered with a hammer in his hand. About that time deceased said to appellant: “X told you to get out of here and never come down here or put your foot on this place.” At that moment, McCormick pitched the hammer to the deceased and . said: “Here, take this hammer.” McCormick went back in his room and returned with a shotgun. Deceased then had a hammer -and McCormick had a gun. Deceased had his hammer drawn back as if to strike the appellant, and McCormick came with the gun. Appellant said:

“Mr. McClurkan made a step, had his hammer drawn back, looked as if he was going to hit me, and Mr. McCormick coming with the gun, I made for the door sideways, shooting as X went for protection. * * ■ * At the tíme I shot I believed McClurkan was going to carry those threats into execution. I thought Mr. McCormick was going to use the gun.”

Appellant said that he took his pistol out when the deceased got the hammer and when he saw McCormick with a gun.

Mrs. John McCormick, appellant’s sister-in-law, testified that she was present when the appellant arrived at her father’s house; that she heard her sister say: “Finis,” and her father say: “'Ah,, Finis,” and observed the appellant standing in the doorway. He had opened the door and stood there with a pistol in his hand. He said: “I heard that ■threat you made yesterday.” The deceased said nothing. The witness ran into the adjoining room to her husband, who was fixing the door with á hammer. He ran into the room with the hammer in his hand. Appellant said: “What are you doing with that hammer?” McCormick said he had been fixing the door and threw the hammer on the chair. The witness left the room and after-wards heard shots fired.

John McCormick testified that when he entered the room the appellant had a pistol in his hand. The deceased was sitting upon a chair about ten feet from the appellant. They were facing each other. Appellant asked the witness what he was going to do with the hammer he had. The witness said, “Nothing,” and pitched the hammer on the chair which was situated at a different place from that in which the deceased was sitting. Appellant said to McClurkan: “I heard the threat you made about me yesterday.” Deceased replied: “I never made any threat against you.” The witness told the appellant that he did not think the deceased had threatened him or intended to hurt him. Appellant then walked to the front door and shot the deceased three times. The deceased fell from the rockingchair in which he was sitting. He at the time'had a book in his hand which he had been reading. The witness then went and fired at the appellant, who fired twice at the witness.

Appellant insists that the evidence was not such as to present the issue of provoking the difficulty, contending that the inquiry before the jury was "who began the difficulty. The precedents illustrating the distinction, between the two theories mentionéd are referred to in the opinion of Carlile v. State, 96 Tex. Cr. R. 37, 255 S. W. 990. In that case, quoting from a text-writer, it was said:

“To render appropriate a charge on the law of provoking the difficulty, there must be evidence that ‘the accused willingly and knowingly used some language or did some act after meeting his adversary reasonably calculated to lead to an affray or deadly conflict, and unless such act was reasonably calculated and intended to have such effect, the right of self-defense would not thereby be forfeited.’ 13 Ruling Case Law, p. 833, § 137; Roberson v. State, 83 Tex. Cr. R. 244 [203 S. W. 349], and cases cited therein.”

It must also appear that an attack or demonstration was made as a result of the provocation. In the present, ease, according to the appellant, he was the subject of an attack by both the deceased and his son-in-law when the fatal shots were fired; that this attack was made at a time when the appellant was armed intruder in the home of the deceased. If appellant had a right of self-defense, it arose from the fact that he was the subject of an attack by the deceased and his son-in-law, McCormick. According to his testimony, this occurred after his entry into the house uninvited and unwelcomed, and after he had begun the conversation. The jury were to judge from the testimony before it, that of the state as well as of the appellant, and determine what words were said and acts done. Manifestly, the testimony authorized the conclusion that any assault that was made .by the deceased and McCormick was due to the words and conduct of the appellant after he reached the home of the deceased. The jurors were likewise justified in concluding that the conduct of the appellant under the circumstances, viewed in the light of the previous relations of the parties, as claimed by the appellant, were reasonably calculated to invite an attack by the deceased and his son-in-law, McCormick. The intent with which the appellant engaged' in the enterprise, with which he went to the home of the deceased, and with which he used the words and did the acts which he recounted after reaching there was a question of fact for the jury to determine under an appropriate instruction from the court. Upon his testimony, especially as supplemented by that of the state that at the time he entered the house the appellant had a pistol in his hand and that his words and his manner were offensive, the court was bound in his charge to qualify the right of self-defense by instructing the jury upon the law of provoking the difficulty. This was done in a manner which to our minds accords with approved precedents as mentioned in the original opinion. The appellant’s right to an interview and explanation from the deceased without the forfeit of his right of self-defense was guarded by a charge to the jury to the effect that he would not forfeit his right of self-defense by arming himself. For additional authorities, see Roberson v. State, 83 Tex. Cr. R. 244, 203 S. W. 349, and cases therein cited; also, Stanley v. State, 81 Tex. Cr. R. 31, 193 S. W. 151.

In his motion for rehearing appellant insists that the charge on provoking the difficulty fell short of the legal requirements. The paragraph of the charge challenged reads as follows:

“On the other hand, if you find that the acts done, or language used by defendant, if any, was not under the circumstances reasonably calculated to or intended to "provoke a difficulty or an attack by deceased upon defendant, or if you have a reasonable doubt thereof, you will decide the issue of self-defense in accordance with the law on that subject given in other portions of this charge, wholly disregarding and without reference to the law on the subject of provoking the difficulty.”

We fail to find any exceptions addressed to the charge of the trial court on the ground that the converse of the law of provoking the difficulty was not sufficiently charged. Such criticism as appears to have been addressed to the trial court advanced the idea that that particular paragraph of the charge quoted above should have contained an instruction to the effect that the fact that the appellant was armed would not. necessarily deprive him of the right of self-defense. As stated, that subject was specifically embraced in the charge prepared .by the court, which must be appraised as a whole.

In his motion for rehearing appellant-says that the paragraph of the charge quoted is faulty in that it does not inform the jury that unless appellant was attacked his right of self-defense would not have been justified. In this respect, this criticism is based upon no exception to the charge of the trial court. However, in our opinion, it is not tenable as a ground for reversal. Particularly is this true since the paragraph of the charge quoted comes from subdivision 16 of the court’s charge in which it was made plain to the jury that the right of self-defense would not be impaired unless each of the several elements of provoking the difficulty existed, and enumerating among them this:

“The things he says or does, either or both, must be reasonably calculated, under the circumstances, to and do cause the deceased to attack the defendant.”

This occurs more than once in the subdivision of the charge mentioned. Moreover, if there had been no attack on appellant or hostile demonstration, the necessity for a charge on self-defense is questionable.

The motion for rehearing is overruled. 
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