
    GARNER v. STATE.
    (No. 8046.)
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1924.
    Rehearing Denied April 22, 1925.)
    I.Criminal law c@=c822(8)--lnstruction on issue of provoking difficulty held not erroneous.
    Instruction on provoking difficulty, though certain specific language would be erroneous if standing alone, when construed as a whole, helé not erroneous in that it left jury free to wander through records at will and appropriate anything which they might construe to have been wrongful or provocative.
    2. Criminal laW &wkey;>829(I) — Giving of special charge covered by main charge unnecessary.
    'Where court’s main charge embraced matters included in special charge, it was unnecessary to give such special charge.
    3. Criminal law &wkey;>829(5) — Charges on question of provoking difficulty, singling out certain wbrds and acts of defendant, properly refused, in view of one given.
    Charges on issue of provoking difficulty, which singled out certain words and acts- of defendant, helé properly refused, in view of instruction given as to any act done or language used by defendant.
    4. Criminal law &wkey;>543(2)— Proper predicate-held laid for reproduction of testimony taken on former trial.
    Evidence as to permanent removal from state of state’s witness on former trial helé to constitute a sufficient predicate for reproduction of such witness’ testimony.
    On Motion for Rehearing.
    5. Homicide &wkey;>300(6) — Court held to have properly refused to single out particular acts in instruction on provoking difficulty.
    In manslaughter prosecution, where evidence showed numerous acts and words on part of defendant and deceased at time of homicide, helé that court, in instructing on issue of provoking difficulty, properly refused to single out or make any particular ae(s or words sole basis of jury’s consideration.
    6. Homicide &wkey;>300(3) — Instruction held to have sufficiently submitted converse of the law of provoking difficulty.
    In prosecution for manslaughter, court’s instruction that, if act done or language used by defendant was not calculated or intended to provoke a difficulty, then defendant’s right of self-defense would not be abridged or lessened, helé to have sufficiently submitted converse of law of provoking difficulty.
    7. Homicide <&wkey;300(l3) — Court held to have properly refused to specify isolated act of defendant in charge on theory of provoking difficulty.
    In prosecution for manslaughter, where evidence was such that jury might conclude that defendant had indulged in a course of words and acts tending to provoke difficulty, helé that court properly refused to instruct jury that, unless they believed a certain isolated act and statement of defendant was reasonably calculated to provoke difficulty, defendant’s right of self-defense was perfect.
    8. Criminal IaW'<&wkey;844(l) — Exceptions to instruction held not sufficiently distinct and' specific.
    In manslaughter prosecution, defendant’s exceptions to charge on issue of provoking difficulty helé not sufficiently distinct and specific under Code Or. Proc. 1911, art. 735, to be made basis of exception that instruction was erroneous in stating that if jury “find” that act done or language used, etc.
    <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      9. Homicide &wkey;300(3) — Use of words “wrongful aot” in instruction on issue of provoking difficulty held not objectionable.
    In manslaughter prosecution, use by court of words “wrongful act” in instruction on issue of provoking difficulty held not ambiguous nor capable of being understood to refer to fact that defendant had a pistol on his person.
    10. Homicide <&wkey;300(3) — instruction on right of self-defense held sufficient..
    In manslaughter prosecution, court’s instruction on defendant’s right to defend himself held sufficient.
    <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Cottle County ; J. H. Milam, Judge.
    Tom Gamer was convicted of manslaughter, and he appeals.
    Affirmed.
    A. J. Fires, of Childress, G. E. Hamilton, of Matador, and Williams & Martin, of Plainview, for appellant.
    L. S. Kinder and C. D. Russell, both of Pláinview, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

The conviction is for manslaughter ;• punishment being five, years in the penitentiary.

This is the second appeal. The opinion upon the first will be found reported in 89 Tex. Cr. R. 486, 231 S. W. 389. Appellant vigorously assails by many objections the charge given upon the issue of provoking the difficulty. It is as follows:

“You are further instructed as part of the law of this case, and as a qualification of the law of self-defense, that, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, Tom Garner, immediately before the. difficulty then and there did some act, or used some language, or did both, as the case may be, with the intent on his, the defendant’s, part to produce the occasion for killing the deceased, George Tibbetts, and to bring on the difficulty with the said George Tibbetts, and that such conduct on the defendant’s •part, if there was such, was reasonably calculated to provoke a difficulty, and that on such account the said George Tibbetts attacked defendant, or reasonably appeared to defendant to attack him, or to be about to attack him, and that the defendant then killed the said George Tibbetts in pursuance of his original design, if you find there was such, or. if the defendant provoked the difficulty that resulted in the death of the deceased, and by his own wrqngful act, if any, produced a necessity for taking the life of the deceased, but in doing so, if he did do so, he had no intention to kill the deceased or inflict upon him serious bodily injury, and suddenly under the immediate influence of sudden passion arising from an adequate cause, as heretofore stated in this charge, he shot and killed deceased, then you will find the defendant guilty of manslaughter, but, on the other hand, if you should find that the act done or language used by defendant, if any, was not calculated or intended to provoke a difficulty, or an attack by the deceased upon the defendant, then and in such event the defendant’s right of self-defense would not in any wise be abridged or lessened, and you will decide in that event the issue of self-defense in accordance with the law on that subject, contained in paragraphs 6 and 7 of this charge, and without reference to the law on the subject of provoking the difficulty.”

The part of the charge most seriously assailed is that part reading “or if the defendant provoked the difficulty that resulted in the death of deceased, and by his own wrongful act, if any, produced a necessity for taking the life of deceased,” etc., the jury, would find defendant guilty of manslaughter. It is insisted that the language last quoted is practically the same language condemned in Mason v. State, 88 Tex. Cr. R. 642, 228 S. W. 952. The entire charge on provoking the difficulty given in Mason’s Case is set out in the opinion. The language here specifically complained of was practically all the law given the jury on that subject in the Mason Case, and was by us held incomplete and erroneous for the reasons therein stated and our views given as to what a proper charge upon the «subject should contain. The-learned trial judge who tried the present case did not fall into the error committed in Mason’s Case, but appears to have embraced in his instructions •the suggestions contained in that opinion. The charge here submitted appears to be almost a literal copy of that set out in Puryear v. State, 56 Tex. Cr. R. 231, 118 S. W. 1042, which received the indorsement of this court in an opinion written by Judge Ramsey; the only changes made being those called for by the different facts and circumstances of the two cases. In Puryear’s Case the facts called for a charge applicable to both murder and manslaughter, while here appellant was upon trial for manslaughter alone. The specific language to which criticism is addressed would be erroneous if standing alone, as it did in Mason’s Case, but, when the entire charge here given upon the subject is considered, we think the objection not well taken. The wording of the charge both, preceding and following the particular language criticized makes clear to the jury we think what “provocation” or “wrongful acts” the court referred to, and we think the charge not subject to the construction that the jury were thereby left free to wander through the record at will and appropriate anything which they might construe to have been wrongful or provocative.

Appellant calls our attention to a suggestion in the opinion on the former appeal that a special charge then asked should have been given after eliminating some objectionable matter, and avers that the charge was modified to meet the view of this court, and was again requested and refused on tlie present trial, which refusal is claimed to have been erroneous. The charge in question-is set out in the former opinion, and the announcement then made that it should have been given was thought to be pertinent, in view of the record then before us, but the instructions here given in the main charge heretofore quoted embraces the matter included in such -special charge, and rendered it unnecessary to give the special charge the same subject.

Appellant requested several special charges, some of which are thought to be upon the weight of the testimony. Others singled out certain words and acts claimed to have been said and done by appellant, -and sought to have the jury told that, unless they were reasonably calculated to provoke a difficulty, his right of self-defense would be unimpaired. We think the court’s main charge more concise and pertinent in advising the jury that, if they found that “the act done, or language used by defendant, if any, was not calculated or intended to provoke a difficulty, or an attack by the deceased upon the defendant, then and in such event the defendant’s right of self-defense would not in any wise be abridged or lessened,” and directing them, if they so found, to' then determine the issue of self-defense without reference to the instructions relative to provoking the difficulty. This charge appears to .be so framed as to protect appellant’s rights in the premises, and we think the special requested charges uncalled for.

Over the objection that a proper predicate had not' been laid therefor, the state reproduced the testimony of J. D. Gunn taken upon a former trial of this case. As, establishing the predicate the state proved by the witness Oooksey that he was acquainted with Gunn and thought he was then living at Albuquerque, N. M.; thát he had seen him at that place in August, 1922, at which time he was living at Albuquerque; that prior to this time he had seen Gunn at Cuba and also at Temporai, N. M.; that prior to the said Gunn moving to Albuquerque he was living at Cuba, and that witness helped him move from Cuba to Albuquerque. Witness said he had not seen' Gunn since he had moved him to Albuquerque in August, 1922; that he did not know where he was at the present time, but the last account he had of them they were living at Albuquerque, N. M. Whitten upon this point testified that he did not know where Gunn was living at the present 'time, but that he saw him in Temporai, N. M., about the 1st of July, 1922; that Gunn was attending a trial there, and told witness he was living at Cuba, N. M.; that Gunn moved away from Motley county, Tex., about the first of January, 1922; witness said he was well acquainted in the part of Motley county where Gunn had lived, and had not heard of. Gunn being back in that part of the country since he had moved away. In support of his objection appellant cites Anderson v. State, 74 Tex. Cr. R. 621, 170 S. W. 142; Wingo v. State, 89 Tex. Cr. R. 162, 229 S. W. 859; Smith v. State, 48 Tex. Cr. R. 65, 85 S. W. 1153. We do not regard these eases as being directly in point. In Anderson’s Case it was held that the predicate did not show a permanent removal from the state of the witness whose testimony was sought to be reproduced; also that such predicate as was sought to be laid was proven by hearsay testimony. In Wingo’s Case the whole testimony upon which the predicate was sought to be based amounted to no more than showing that no witness knew where the absent witness was at the time of the trial; there was no evidence that he had removed from the state at all. In Smith’s Case the absent witness had only told another party that he was going back to North Carolina, but there was no evidence introduced showing that he had in fact left the state of Texas. We are inclined to the view that the evidence here shows that the witness Gunn had removed from the state of Texas to the state of New Mexico, and there is nothing to indicate that his removal was other than that of a permanent character. In our judgment the predicate was sufficient to authorize the reproduction of his evidence under the authority of Brent v. State, 89 Tex. Cr. R. 546, 232 S. W. 845; Mitchell v. State, 65 Tex. Cr. R. 545, 144 S. W. 1006; Grant v. State, 67 Tex. Cr. R. 155, 148 S. W. 760, 42 L. R. A. (N. S.) 428; Menges v. State, 21 Tex. Cr. R. 413, 2 S. W. 812; Whorton v. State, 69 Tex. Cr. R. 1, 152 S. W. 1082. In the case last cited many authorities other than those here referred to are collated, and the question appears to have been thoroughly considered; the court as then constituted not being in accord upon the subject. We quote from the majority opinion in that case- as follows:

“Many other cases could be cited, but they all adhere to the holding that, when a witness is shown to have permanently removed beyond the jurisdiction, the evidence is admissible; otherwise when his absence is only temporary, and in this case the evidence shows that the removal was permanent, and when it is once shown that a witness has permanently removed beyond the jurisdiction of the court, it is not necessary to show his exact whereabouts on the day of the trial. To place such a burden on the state or defendant would in effect exclude the testimony in almost every instance.”

' We have discovered no error in the record which calls for a reversal, and the judgment is ordered affirmed.

On Motion for Rehearing

LATTIMORE, J.

Urging his right to an affirmative presentation of his theory of the ease, appellant insists that such character of charge was not given, and that the converse of the law of provoking the difficulty was not presented. He contends that the state relied on the fact that its witnesses claimed that he flipped his ear at the deceased, and said, “You don’t look like a bad man to me,” as the only facts and circumstances supporting the theory of provoking the difficulty. We cannot assent to this. In the original opinion we discussed the principles of law, and will now advert more fully to the facts.

Deceased was floor manager at a dance, and it is claimed that appellant was standing in the room where the dancing was in progress, and that deceased said, “Please move back and give the dancers room; I hate to be cranky about it.” Witness Gunn said appellant replied, “How far do you want me to' move, an inch ?” to which deceased said, “Yes, two inches,” and that appellant made another remark which witness could not get, and deceased then said, “When I say move, I mean move,” and that there then followed the episode of the ear flipping by appellant and remarks by him substantially as above referred to. This witness further said that ■deceased replied to appellant’s remark that he did not look like a bad man by saying that he was pot a bad man, and that he did not want any trouble, and that' he started away, whereupon appellant said something else to deceased, to which he replied, “If it is a row you want, a row goes,” and that they went together, appellant catching deceased around the neck and firing the shot that killed him. Brummett, a witness for the defense, swore that deceased asked “us boys” several times in a kindly manner to stand back and give the dancers room, and when he did this just before the trouble appellant asked him if he wanted him to move two or three inches further, and then he said, “Is this far enough?” and that deceased said, “Yes, sir”; that deceased also said, “I am not trying to raise any roughhouse, but when I say stand back I mean stand back,” and that appellant then said to deceased, “You don’t look like a bad man to me,” and they clinched, and the gun fired. Clark, also a witness for appellant, swore that he heard appellant say- to deceased, “You are not a bad man, are you ?” to which deceased replied, “If it’s trouble you are looking for, you can get it,” and they clinched, and the gun fired in about two seconds. Appellant himself on the 'witness stand admitted that just before he and deceased came together he said to the latter, “You are not a bad man, are you?” and also declined to say whether or not he flipped his ear at deceased just before he made this remark.

These statements serve to illustrate the correctness of the refusal of the trial court to single out or make any particular act or words the sole basis of the jury’s consideration of the theory of provoking the difficulty — and further demonstrate the wis-

dom of leaving to them all the acts' and words of appellant at the time in order to determine what his purpose was in what he did and said.

Did the court properly submit the converse of the law of provoking a difficulty? The charge on this point is set out at length in our former opinion. After stating in terms that if the jury found from the evidence beyond a reasonable doubt that appellant did some act or used some language, or both, as the case might be, with the intent to produce the occasion and bring on a difficulty, etc., the charge then proceeds to say:

“But, on the other hand, if you should find that the act done or language used by defendant, if any, was not calculated or intended to provoke a difficulty, or an attack by the deceased upon the defendant, then and in such event the defendant’s right of self-defense would not in anywise be abridged or lessened,” etc.

We do not see just how the court could have more pertinently submitted this converse. He could not tell the jury that, if appellant did not flip his ear or did not say what Gunn said he did, or if he did not say what Brummett said he did, or if he did not say what Clark said he did, etc., they should find that he did not provoke the difficulty. Such statements would be on the weight' of the evidence, and would be selecting in an unwarranted manner a particular act or group of words when in fact there might be other acts, words, and conduct which might have been considered by the jury in this connection. Stacy v. State, 48 Tex. Cr. R. 98, 86 S. W. 827, and Shoemaker v. State, 71 Tex. Cr. R. 445, 160 S. W. 356, are cited as holding. with appellant’s view. In each of those cases the accused denied doing or saying anything of the character relied on as provoking the difficulty, and no charge on the converse of this proposition was given. In Stacy’s Case the charge seems to assume that the language was used. In the instant base there was apparently no denial of the use of language to deceased by appellant, and this fact was for the consideration of the jury under the circumstances in determining the 'issue under discussion. There was no dispute of the fact that deceased in the discharge of his duties was urging certain things upon appellant, and that appellant replied in several ways to such insistence of deceased. We take it the only question was whether or not such acts, words, and conduct on the part of appellant were used with the intent to, and were calculated to and did, provoke the difficulty. We think the converse as given ifl the charge satisfactory. We find no special charge in the record which more pertinently submitted said converse. Appellant asked that the 'jury be told that, unless they believed beyond a reasonable doubt that he flipped his ear and stated, “You don’t look like a bad man to me,” was suck conduct and language as was "reasonably calculated to provoke the difficulty, appellant’s right of self-defense was perfect. If there was an agreement that this was the conduct and language and all of it that was relied upon or usable by the jury in determining the question of provoking the difficulty, the charge might have been pertinent, but the jury had the right to take into consideration all of the acts, language, and conduct of the accused, and could not be held to the two matters stated in said special charge. As we understand this record, the jury might easily have concluded that appellant with a pistol repeatedly placed himself where the duties of deceased would cause him to seek to remove appellant, and that, when he was asked to move, appellant’s words and the slight movements of his body would appear not intended as a compliance with the request, but as such treatment of said request as to amount to a refusal and an effort to bring on a further controversy anu difficulty with the deceased, which, when it did arise, was followed by appellant shooting deceased, in the language of his witness Clark “in about two seconds.”

Complaint appears in this motion of the charge for stating to the jury that if they “find” that the act done or language used, etc., was not intended or calculated to provoke the difficulty. Page 5, Branch’s Annotated P. C. is referred to as citing authorities holding that such a charge is erroneous. The authorities there cited are wholly in regard to how and when the doctrine of reasonable doubt should be given in the charge. Our statute requires that exceptions to' the charge of the court be distinct and specific. Article 735, C. C. P. This record does not show any exception measuring up to this requirement taken to that part of the charge now complained of. There is an exception to the whole of paragraph 8 of the charge for not requiring the jury to find that the facts relied on by the state as evidencing a provoking of the difficulty be proven beyond a reasonable doubt, but an examination of said paragraph manifests that this exception is without support. There is also an exception as follows: “The latter part of said paragraph is erroneous in that the burden of proof is not placed on the state.” This is not specific from any angle and finds no support in the authorities collated and referred to above. Nor are we able to agree that the court’s use of the words “wrongful act” were liable to be misappropriated by the jury, or that this left them

to grope in darkness trying to find out what the court meant. Taken in connection with the other portions of the charge, it was not erroneous. Nor can we agree that the fact that appellant had on his person a pistol on the night óf the difficulty could be interpreted by the jury as the “wrongful act” referred to by the court in giving to the jury the law of provoking the difficulty.

On appellant’s right to defend himself the following charge was given:.

“Now, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, Tom Garner, killed the deceased, George Tibbetts, but you further believe from the evidence that at the time of doing; so, if he did, the deceased was making or was about to make an attack upon the defendant, or that it then and there reasonably appeared to the defendant that the deceased was about to make an attack upon Mm, and that from the manner and character of such real, apparent, or threatening attack, and from the defendant’s knowledge of the physical strength and boxing skill of the deceased, and taking into consideration the relative strength and size of the. parties, viewed alone from the defendant’s standpoint at the time, the defendant thereby was caused to have a reasonable expectation, or fear of death, or ‘serious bodily injury at the hands of the deceased, even though you may further believe that no danger, in fact, existed, and that, acting upon such expectation or fear, the defendant shot and killed the deceased, or if you have a reasonable doubt thereof you will acquit the defendant, and say by your verdict, ‘not guilty.’ ”

This obviated the necessity for giving any of the special charges on the subject of self-defense. Nor do we think the rights of appellant or the facts of the case called for any charge more specifically referring to the means or instrument used by the deceased. The only means or instrument used or attempted to be- used by him, if any, was his hands, and, if appellant knew of the strength and skill of deceased in making an attack with his hands, and same caused him to have a reasonable expectation or fear of dfeath or serious bodily injury at the hands of deceased, he was fully accorded the right to defend himself by the charge above quoted, and, if the jury did not believe beyond a reasonable doubt that he provoked the difficulty, they were there told that his right to kill deceased in his own self-defense was perfect.

Believing the case rightly decided, and being unable to agree with any of' the contentions made in this motion, same will be overruled.  