
    (85 Tex. Cr. R. 578)
    BECK v. STATE.
    (No. 5059.)
    (Court of Criminal Appeals of Texas.
    May 14, 1919.
    On Motion for Rehearing, June 18, 1919.)
    1. Homicide <&wkey;300(10) — Manslaughter — Instruction on Self-Defense — Peovo-cation.
    Where it was admitted that defendant assaulted deceased before the latter made any demonstration, and defendant testified that he intended to kill deceased because of insulting conduct toward defendant’s wife, but did not fire until he saw deceased getting his pistol from his pocket, the conduct of defendant, being intended to provoke deceased, could not reduce the offense below the grade of manslaughter, hence a refusal to charge on the law of self-defense was proper.
    2. Criminal Daw <&wkey;595(6) — Continuance — Gkounds. ’
    In a prosecution for murder, it was not error to refuse a continuance because of the absence of a witness who would merely have testified to uncommunicated threats; there being no issue of self-defense.
    3. Criminal Daw <&wkey;595(l) — Continuance-Grounds.
    In a prosecution for murder, it- was not error to refuse a continuance because of the absence of a witness who would merely testify to an admission by deceased of misconduct toward defendant’s wife; sucb admission not being material unless communicated to defendant
    On Motion for Rehearing.
    4. Homicide <&wkey;112(6) — Self-Defense — Aggression.
    Where defendant determined to kill deceased and armed himself with a shotgun for that purpose, and, on seeing deceased, presented the shotgun, and by words indicated a hostile intent reasonably calculated to cause deceased to make a counter demonstration, defendant had. no right to make the demonstration so induced the cause for killing deceased, and the law of self-defense was not involved.
    Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.
    Roy Beck was convicted of manslaughter,' and he appeals.
    Affirmed.
    Wynne, Wynne & Gilmore, of Wills Point, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted for murder and convicted of manslaughter. The homicide took place in the house of H. H. Smith, and in a room in which Smith was confined to his bed on account of an injury. The deceased, Albert Kindle, was a visitor at his house, and immediately before the homicide was sitting astride a chair with his face to the back of it, reading to Smith.

The state’s witnesses gave testimony to the effect that the appellant stepped into the door of the room in which the deceased was sitting and, holding a shotgun, commanded deceased to throw up his hands, firing almost immediately after making this remark. Smith said that, when the appellant said throw up your hands, Kindle said, “Do you mean me? ” that Kindle was at the time raising up or starting to raise up, and turned loose the book which he had in his hand, and his hands were oh the posts of the chair. Appellant was about eight feet away, firing one shot. After the shot was fired appellant raised the jumper of deceased and said, “Take that gun off of him,” and in reply to a question said that he killed him in self-defense and about lies that deceased had been telling on him. The officers arriving after the homicide found a pistol on the deceased. Appellant’s wife testified that about a month prior to the homicide the deceased had made an indecent proposal to her, which she had related to her husband for the first time on the night preceding the homicide. Appellant claims to have been agitated by this information, and said that on the following morning he borrowed a shotgun and shells, and, taking them with him, went into his field, which was in the vicinity of Smith’s house. We quote from him as follows;

“I was expecting to take my gun with me from then on. I knew that Kindle went armed, but did not know he was at Smith’s house until I stepped in the door.”

He claimed to have gone to Smith’s house to get a drink of water, after obtaining which he went into the door, and quoting from him again:

“Mr. Kindle was sitting in the house back to the left and was facing the door. When I saw him I just told him to throw his hands up and I threw my gun in a position to shoot. He made a pass to get up, and he got just about straight and was running his hand in his pocket, and I threw my gun on him and said, ‘Book out,’ and he never said a thing and kept on, and I saw the handle of his pistol in hia pocket. I saw he was going to get out his gun, and I shot him.”

He said, that when he got the gun he intended to keep it until he saw Kindle, and said:

“As quick as I saw him I told him to throw his hands up and march out and we would settle it. I can’t exactly remember what he said, but I never shot him until he straightened up and started to pull his gun out of his pocket, and I saw the handle and movement of the gun, and my best recollection is, I said, ‘look out,! don’t do that.’ When I got the gun I got it for the purpose of killing him because of the insult to my wife, and I killed him because he insulted my wife.”

A child was born to the wife of deceased about a year before the homicide, and there was evidence that deceased claimed appellant was its father, and threatened to kill appellant.

We do not think that the court was in error in refusing to charge the jury on the law of self-defense. He was making an assault upon the deceased before the latter made any demonstration, according to the admitted facts. He says that when he made the assault and when he got the gun he intended to kill deceased because of the insulting conduct toward his wife. Accepting his statement as true, that he did not fire until he saw the deceased was getting his pistol from his pocket, the demonstration by the deceased was in response to the assault which the appellant was making. Even if he presented the shotgun without the intent to kill, the deceased, his conduct was such as to provoke the deceased and to bring on the occasion for a difficulty, and being so intended, and calculated to bring about that result, it could not reduce the offense below the grade of manslaughter. In Doss v. State, 43 Tex. Cr. R. 552, 67 S. W. 321, the evidence was similar and the legal propositions the same. From it we quote the language of Judge Davidson in writing the opinion:

“As before stated, the only inducement shown by the testimony. was the insulting conduct to the wife of appellant as she detailed it to him. The intent and purpose of appellant in following deceased was to kill him. There was no condition coupled with his purpose as manifested in this record. Every act of the defendant was to the same effect. He had his pistol in his hand ready; he approached deceased in a rapid manner, and for the express purpose of killing him. It was not for the purpose of inquiring of him about the matter, but alone for the purpose of killing! His actions, as well as his intent, were coupled together, and showed the evident intent and purpose of destroying the life of deceased on account of the insulting conduct towards his wife.". He provoked the difficulty, produced the occasion. His intent and purpose, viewed from his own standpoint, was to kill, and he had no other purpose, so far as this record is concerned. This eliminates the question of self-defense.”

Other cases rejecting the theory of self-defense on similar facts are Smart v. State, 101 S. W. 990; Laws v. State, 101 S. W. 987; Melton v. State, 24 Tex. Cr. R. 59, 5 S. W. 652; Thumm v. State, 24 Tex. Cr. R. 703, 7 S. W. 236.

In the light of the qualification attached by the trial judge to the bill of exceptions complaining of the unauthorized cross-examination of the wife of appellant, no error is disclosed; and the bill relating to the cross-examination of the witness Boyette fails to set out the conversation or to show its relation to the record. We have made an examination of the entire testimony of the witness, and discern nothing therein which renders it subject to criticism.

The appellant complains of the refusal to. continue for the exclusion of state-1 ments imputed to the deceased. The absent witness, it is alleged, would have testified to an admission by the deceased of misconduct towards the wife of appellant and would have further testified to threats against the appellant. The admission mentioned would not be material unless communicated to appellant, of which there is no suggestion Jn the bill. The declaration of misconduct was not available to prove the fact (Wharton’s Crim. Ev. vol. 1, p. 451, § 225), and the absence of the issue of self-defense renders the uncommunicated threats unimportant (Wharton on Homicide, p. 401, § 220; Branch’s Ann. Tex. P. C. § 2079). Another bill to the exclusion of similar testimony for the same reasons presents no error. There was no evidence that deceased denied insulting appellant’s wife, and his declarations of like conduct to others was hearsay and an effort to discredit his character by proof of specific acts unknown to appellant. See Jones v. State, 38 Tex. Cr. R. 104, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719. Even if the proffered declarations of the deceased concerning his conduct towards the wife, of appellant and her sister had been admissible, they would have been cumulative of tes•timony of several witnesses, and their bearing would have been alone upon the question as to whether appellant’s offense, if unlawful, should be reduced to manslaughter, upon which issue the jury found in his favor. Their exclusion under the circumstances would not be regarded as reversible error. •

The judgment of the lower court is affirmed.

On Motion for Rehearing.

Referring to the case of Wood v. State, 211 S. W. 782, the appellant, insists that the former action of the court is erroneous. In that case the court says:, “.The burden is not on the defendant, but on the state, to show criminality.” The case was one in which the issue of self-defense was clearly raised. There was a fight in which Wood was severely injured. His right to a charge on the law of self-defense was not challenged either in this or in the trial court. Having a right to a charge tipon that defensive theory, it was proper that the court’s charge be so framed that the burden would remain with the state to prove an unlawful homicide, and in deciding the case the conclusion was expressed that this principle was not observed.

In the instant case the facts did not raise the issue of self-defense. He determined to kill the deceased. He armed himself with a shotgun for that purpose, and on seeing him he presented the shotgun in a shooting attitude, and by words indicated a hostile intent. The appellant’s intent being to kill, and his conduct such that it was reasonably calculated to cause the deceased to make a counter demonstration, the appellant had no right to make the demonstration so induced the excuse for a death blow to the deceased. In its most favorable light to him the evidence showed the appellant was guilty of manslaughter. The court correctly refused to charge the law of self-defense because there was no evidence which raised that issue. See Peck v. State, 6 Tex. App. 611, and other cases listed on page 1110, Branch’s Ann. Texas P. 0., supporting the proposition that, in the absence of evidence of self-defense, the court is not in error in refusing to charge thereon. The cases of Smart v. State, 101 S. W. 990, Melton v. State, 24 Tex. App. 69, 6 S. W. 652. and Thumm v. State, 24 Tex. App. 703, 7 S. W. 236, are fact cases in which the refusal of the court to charge on self-defense was approved, and are cases in which the question of insulting conduct to the wife of the accused was not involved.

' The facts of this case are not to be distinguished, in our opinion, from those in Doss v. State, 43 Tex. Cr. R. 552, 67 S. W. 321, and under the principle there laid down, assuming that all of the issues raised by the evidence were decided in appellant’s favor, the result would have been merely to mitigate his offense and make it manslaughter.

The motion is overruled. 
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