
    IVENS v. STATE.
    (No. 5953.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1920.)
    Homicide &wkey;»244(l) — Evidence not conclusive on issue of killing in self-defense.
    In a prosecution for murder resulting in conviction of manslaughter, evidence held to sustain the conviction, not being conclusive on the issue of killing in self-defense.
    Appeal from District Court, Houston County; John S. Prince, Judge.
    Joe Ivens was convicted of manslaughter, and he appeals.
    Affirmed.
    Adams & Adams, of Crockett, for appellant.
    Alvin M. Owsley, Asst. Atty Gen., for tbe State.
   MORROW, J.

Appellant was charged with murder, and convicted of manslaughter, and his punishment fixed at three years’ confinement in the penitentiary.

Tbe record discloses no complaint of the ruling of tbe court in tbe admission of evidence or tbe submission of tbe issues to tbe jury. The sufficiency of tbe evidence to sustain tbe conviction is tbe sole question presented for review. Tbe appellant and deceased, Townsend, were both young men. The homicide took place at a party at which they attended. During tbe day preceding tbe party, a game of basket ball bad taken place, in which the appellant was engaged as referee. A ball which was used in the game rolled out of tbe court and was kicked across tbe court by tbe deceased, who was a bystander. A wordy altercation took place. There was proof- that threats were made both by the appellant and tbe deceased. Both were armed at the time of the homicide. There was evidence, introduced by the, state, justifying tbe inference that appellant went to tbe party expecting trouble with tbe deceased. What happened immediately before tbe shooting was disclosed by the res gestas statements of tbe deceased and the testimony of the appellant.

From appellant’s version, it appears that be bad beep informed that deceased had threatened to shoot him; that while at tbe party the deceased approached him, and said: “I reckon we bad better settle our little row tonight.” Appellant stated that he bad not intended to hurt the feelings of the deceased, and would apologize; that deceased declined to be mollified, and tbe appellant insisted upon postponing the difficulty until tbe next day, on account of the presence of tbe parties; that tbe deceased declined this proposal, and then hit the appellant in tbe face with bis fist. Appellant said:

“At that time I saw tbe flash of Ms gun, and his hand right on it. I had my automatic in my pocket, pulled it, and began shooting.”

Immediately after be fell, according to tbe testimony of bis brother,' tbe deceased said: “I am done for.” Asked if be was given a chance, be said; “No, be shot me”; that he bad been playing, and returned for bis bat, and when he started to get it the appellant asked him if be wanted to kick another ball, upon which the deceased bit him, and the appellant began shooting. The evidence showed that tbe deceased’s pistol was in .its scabbard, and be remarked before be died that he would have got the appellant if he had not paralyzed his arm so quick.

Appellant, in bis cross-examination, made some admissions indicating that be was not mad or excited. His counsel insists that tbe evidence of self-defense was conclusive, and that these admissions should not be allowed to prejudice bis right to- defend his life. The declarations, indicating that be was not mad or excited, were not regarded by the jury as depriving him of the benefit of the law of manslaughter, upon which issue tbe expressions mentioned bore. We are not able to accept as correct the view that the evidence of self-defense was conclusive. Tbe appellant bad been advised that tbe deceased bad threatened him. There was ill will between them, and tbe appellant armed himself, went to tbe place where be expected to meet tbe deceased, declaring, according to tbe testimony, that be was prepared to meet him, and that he was able to shoot quicker than tbe deceased. When be did meet him, according to the state’s testimony, lie asked the deceased if he wanted to kick another ball. This remark, considered in connection with the altercation at the basket ball game, which grew out of the fact that the deceased had kicked a ball, was apparently calculated to bring on a conflict. The deceased did respond to it with a blow, which was followed by the shot from the appellant’s pistol. We cannot say that it evidently appears that by the verdict injustice was done.

The judgment is affirmed. 
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