
    MOORE v. STATE.
    (No. 8329.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1924.)
    1. Homicide &wkey;»300(8) — Instruction on law of provoking difficulty held properly given.
    In a prosecution for murder, where defendant and deceased had resided upon neighboring farms and the killing grew out of a quarrel concerning the location of a fence and occurred when defendant intercepted deceased as he was driving by his field, helé, that an instruction on the law of provoking the difficulty was properly given.
    2. Homicide &wkey;>300(3) — Denial of Instruction as to right of self-defense in connection with one on provoking difficulty held error.
    In a prosecution for murder which occurred under circumstances warranting an instruction on the law of provoking the difficulty, where defendant had armed himself with a pistol in anticipation of meeting deceased, helé, that it was error to refuse, in connection with the instruction on the law of provoking the difficulty, to instruct that appellant had the right to carry a pistol upon his own premises, and that such fact would not deprive- him of the right of self-defense. ⅝
    3. Homicide <&wkey;300(5) — Abstract statement of law held improperly given in connection with instruction, applying law to facts.
    A general statement concerning the principles controlling the law of provoking the difficulty held improperly given, in addition to a charge on that subject, as applied to the facts of the- case, as tending to mislead.
    4. Criminal law <⅞=»518(3)- — Confession held' to show sufficient warning.
    Language of a confession reciting the giving of a warning that it might be used against the one making it held a sufficient compliance with Code Cr. Proc. 1911, art. 810.
    Appeal from District Court, Hopkins County; Geo. B. Hall, Judge.
    J. R. Moore was convicted of murder, and he appeals.
    Reversed,, and cause remanded.
    Dial, Melson, Davidson & Brim, of Sul-phur Springs, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The conviction is for the murder of Berry Roberts by shooting him with a pistol.

Appellant and deceased resided upon neighboring farms. They had a quarrel about the location of appellant’s fence along the community road which passed his premises. This took place a few weeks before the homicide. There was evidence that the deceased had made hostile declarations and threats to do the appellant violence. Some of these, according to appellant’s testimony, were communicated to him, and he also gave evidence of various specific acts of violence upon the part of the deceased against other persons. There were no eyewitnesses save the' appellant. According to his testimony, he put his pistol in a scabbard on his person with the view of seeing the deceased some time during the day and discussing with him their differences. Appellant went upon his farm and was doing some work, when he observed the deceased approaching the community road, riding in his wagon. What then happened is thus described by the appellant:

“When I saw him, I laid my fork down and started to the road in the direction of the post, and he was driving in that direction. I was on my own premises all this time. I went to the corner. He was sitting in a hack on a very small box and driving in an easterly direction. When I got to the post, I asked him why he was telling those damned lies about this road on me, and he said, T haven’t done it,’ and I told him he had, and started to give an explanation, and he turned to me and says, ‘You are a God damned liar,’ and dropped his lines with his right hand and throwed his hand behind him. I was standing with my hand on the post talking with him, and as he did that I pulled my six-shooter up, shooting, and fired three shots.”

We think the evidence justified the learned trial judge in instructing upon the law of provoking the difficulty as a limitation upon the law of self-defense. Appellant began the conversation with the de; ceased by the use of language which the jury might have deemed to be reasonably calculated to provoke the deceased and bring on a conflict; and it cannot be said, as a matter of law, that the language and conduct of the appellant was not with such an intent. Having placed such limitation upon the right of self-defense, however, the court was not warranted in refusing to instruct the jury that the appellant had the right to carry a pistol upon his own premises, and that the fact that he had a pistol would not deprive him of the right of self-defense. The precedents are' uniform to this effect. See Stanley v. State, 81 Tex. Cr. R. 32, 193 S. W. 151; Alexander v. State (Tex. Cr. App.) 255 S. W. 409; Roberson v. State, 83 Tex. Cr. R. 238, 203 S. W. 354. This omission in the charge was called to the attention of the trial court both by exception to the main charge and by a requested special charge.

The court, in paragraphs 13 and 13a, in instructing the jury on provoking the difficulty as applied to the facts of the present case, chose language which, so far as we are able to discern, was well adapted to the purpose intended and quite in accord with the approved precedents. None of the faults pointed out in Mason’s Case, 88 Tex. Cr. R. 642, 228 S. W. 952, to which the appellant refers, have been perceived.

In paragraph 12 of the charge the court embraces a general statement touching the principles controlling the law of provoking the difficulty, the necessity for which is not apparent,- and the effect of which might be misleading. From it this paragraph is quoted:

“You are further instructed as a part of the law in this case and as a qualification of the law of self-defense that if a person by his own willful and wrongful act brings about the necessity of taking the life of another to prevent being killed himself, he cannot say or' claim •that such killing was in his own necessary self-defense; but the killing will be in such case imputed to malice by reason of the wrongful act which brought it about or malice from which it was done.”

This phase of the charge is adverted to, not as a reason for reversing the case, but as an indication of the view of this court that upon another trial this abstract statement should be omitted. See Carlile v. State (Tex. Cr. App.) 255 S. W. 991.

" From the appellant’s confession, this is quoted:

“I make his statement after being warned by the said Emmett Thornton, county attorney of the county and state aforesaid, that I do not have to make this or any other statement concerning said killing of Berry Roberts and that any statement by me may be used in evidence against me upon any trial for the offense of murder concerning which I am voluntarily making a statement and that this statement cannot be used in evidence for me.”

The criticism of the verbiage in which the warning is couched is deemed without merit. The language is not exactly that embraced in article 810, C. C. P., but in substance it is the same.

Some very meager bills of exception relate to the rulings of the court in ⅛‡ admission of evidence. Prom them no error is perceived.

The other matters complained of are such as are not likely to occur upon another trial.

The state’s counsel concedes that because of the error of the court in failing to inform the jury, in connection with his charge on provoking the difficulty, that the appellant’s possession of a pistol upon his own premises would not deprive him of the right of self-defense, the judgment should be reversed and the cause remanded. Such is the order. 
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