
    BILBERRY v. STATE.
    (No. 9722.)
    (Court of Criminal Appeals of Texas.
    March 24, 1926.)
    1. Criminal law <&wkey;>730( 10) —Argument of prosecutor that equipment of defendant with ammunition by state’s witness was unexplained held, notwithstanding court’s direction not to consider it, reversible error as alluding to defendant’s failure to testify (Vernon’s Ann. Code Cr. Proc. 1916, art. 790- [Code Cr. Proc. 1925, art. 710]).
    In murder prosecution, argument of prosecutor that state’s witness’ equipment of defendant with ammunition to kill a man stands unexplained held reversible error as allusion, to defendant’s failure to testify in violation of Vernon’s Ann. Code Cr. Proc. 1916, art. 790 (Code Cr. Proc. 1925, art. 710), though trial court instructed jury not to consider it.
    2. Criminal law <®=»323 (6) — Court’s failure to instruct that right of self-defense would not be abridged by opprobrious language towards deceased,’ not intended to provoke difficulty, held not erroneous, in view of further charge.
    Court’s failure, after charging on law rela-’ tive to provoking difficulty, to affirmatively instruct that, if defendant went to scene of killing for lawful purpose, and while there used opprobrious language towards deceased, but did not intend thereby to provoke difficulty, Ms right of self-defense would not be abridged, held, not erroneous, in view of further charge that such right would not be limited, unless he intended language to provoke difficulty, and it was reasonably calculated to, and did, do so.
    Commissioners’ Decision,
    Appeal from District Court, Stonewall County; Bruce W. Bryant, Judge.
    Raleigh Bilberry was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    W. H. Murchison, of Haskell, and J. F. Cunningham, 'of Abilene, for appellant.
    Stinson, Coombes & Brooks, of Abilene, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

Appellant was convicted in the district court of Stonewall county of the offense of manslaughter, and his punishment assessed at five years in the penitentiary.

The record discloses that the appellant killed Flurry Gibson at a public gathering, about the 7th of April, 1824, by shooting him with a pistol. The appellant, the deceased, and others, after the business at said gathering was over, met in the vestibule, or near the door, of the schoolhouse, and the appellant remarked to the deceased that he (deceased) had turned his “distill outfit in,” to which the deceased replied that he had not done so. The appellant then said to deceased, “Well, God damn you, you have been telling it around over the country,” to which the deceased replied that he had not. The appellant then said, “Yes, God damn you, you have, too.” The deceased asked the appellant to stop cursing him, and appellant replied, “Well, God damn you, come on out.” The deceased told him to keep his shirt on, and wait and find out what he was cursing about before he said too much, and appellant said, “Well, God damn you, it is here for you, come on.” The deceased then hit the appellant with his fist, staggering him, whereupon the appellant shot the deceased three times with a pistol, which caused his death.

The appellant did not testify, but the evidence introduced by him raised the issue to the effect that he had gone to the gathering to see one Mr. Rimes about getting a fresno, or road scraper, and that the reason he was armed was to protect himself from threats made by parties supposed to he members of the Ku Klux Klan. This is a sufficient statement of the facts for a discussion of this case.

Appellant presents but two questions in this brief upon which he relies for reversal of this case. The first is that the private prosecutor in his closing argument to the Jury alluded to the failure of the defendant to testify, and stated:

“They (meaning defendant’s counsel) complain because the state introduced Buttrell to show the purpose to commit the deed, 'equipping himself (meaning the defendant) with ammunition to kill a man, and that stands to-day unexplained in this case; that is absolutely unexplained.”

This bill shows that áppellant, the day before the homicide, asked the state’s witness, Buttrell, to buy him some, cartridges, without telling the purpose for which he wanted them, and that, when the witness bought them and gave them to the defendant, no one was present, and nothing else was said about the matter. It is the contention of the appellant’s counsel that this was an allusion to the failure of the defendant to testify, and in strict violation of article 710, C. C. P. 1925 Code (Vernon’s Statutes, art. 790), which states that a failure of the defendant to testify shall not be taken as a circumstance against him, “nor shall the same be alluded to or commented on by counsel in the cause.” We think under the facts of this case that this statement could only allude to the defendant’s failure to testify and explain the purpose of getting these cartridges, as no one but him and Buttrell were present, and he did not disclose his purpose to Buttrell, and therefore no one but him knew such purpose, and said argument was clearly prohibited under the mandatory provisions of article-710, supra, which necessitates the reversal of this case. Hext v. State, 271 S. W. 81, 100 Tex. Cr. R. 24; Grimes v. State, 271 S. W. 898, 100 Tex. Cr. R. 34. It is true that the trial court instructed the jury not to consider said argument, but this court has •many times held that the injury done to the defendant under such circumstances could not be cured by the court’s charging the jury to disregard same. For collation of authorities see Branch’s Ann. Pen. Code, § 375.

The second objection is that the trial court, having submitted in his charge to the jury the law relative to provoking a difficulty, committed error in not affirmatively instructing the jury to the effect that, if the appellant went to the scene of the killing for a lawful purpose, and while there used said language towards the deceased, but he did not intend thereby to provoke a difficulty, then his right of self-defense would not be abridged. The appellant does not specifically object to the court’s charge for the reason above stated, but excepted to the charge as follows:

“Defendant says in this connection that, if his words or acts, or both, provoked an assault by deceased upon the defendant, without any intention upon the part of the defendant to provoke said’ assault, and if he killed the deceased in his own self-defense, as defined in the charge of the court, the fact that the deceased was provoked by the acts.and words of the defendant would not deprive Mm of his right of self defense.”

The court, in subdivision (b) of the twelfth paragraph of his charge, on this issue charged the jury as follows:

“But in this connection, with the foregoing charge upon provoking the difficulty, yon are further instructed that you must not only believe that defendant used the language relied on by the state to show provocation of deceased, but you must further believe that the defendant intended such language, if any, to provoke a difficulty, and that such language, if any, was reasonably calculated to, and did actually, provoke a difficulty in which the deceased was killed, and, unless you so believe from the evidence beyond a reasonable doubt, you will not consider this paragraph, which is paragraph 12a of the court’s charge, as in any way limiting the defendant’s right of self defense.”

We think that the above charge given by the court fully covers the objections and exceptions raised by appellant to the charge, and the record shows no error in the particulars complained of.

Eor the error above discussed, the judgment of the trial court is reversed and remanded.

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. 
      <£=»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     