
    AYCOCK v. STATE.
    (No. 5995.)
    (Court of Criminal Appeals of Texas.
    Dec. 1 1920.)
    1. Homicide <&wkey;300( 14) — Failure to charge oi uncommunicated threats erroneous unless matter of no importance.
    In a prosecution for manslaughter, where the question is in issue who began the difficulty, and the issue of self-defense is involved on such question, the trial court’s failure to charge on uncommunicated threats is erroneous, unless the matter is of no importance in the case.
    2. Criminal law &wkey;>814(l) — Charge must always conform to facts and issues.
    The charge must always be conformed to the facts and issues arising in a particular case on trial.
    3. Homicide &wkey;>300( 14) — Failure to charge on issue of uncommunicated threats by deceased erroneous.
    In a prosecution for homicide, where self-defense was an issue, there being some evidence that deceased was the aggressor, even to the extent of provoking the difficulty, the trial court erred in failing to charge on the issue of uncommunicated threats by deceased, though it did charge on communicated threats.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    A. J. Aycock was convicted of manslaughter, and he appeals.
    Judgment reversed, and cause remanded.
    Jed C. Adams, of Dallas, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of manslaughter, and his punishment assessed at two years in the penitentiary.

It was seriously controverted on the trial as to who began the difficulty. There is evidence from the witnesses for the state and appellant that deceased was the aggressor, even to the extent of provoking the difficulty. This evidence shows that deceased and appellant had had some trouble about settlements of financial matters which were finally compromised on the .day of the homicide and preceding the difficulty. There were communicated threats by deceased to take the life of appellant. There are also uncommu-nicated threats made by deceased against the life of appellant.

At the time of the difficulty the two men met in the presence of eyewitnesses. The deceased had a knife in his hand and was accompanied by a Mr. Curtis. There was some conversation, and appellant bade deceased to go away; that he did not want any trouble with him. Deceased said to appellant that he had been acting the “damn rascal” with him for a year, started towards him with a knife in his hand. The evidence is disputed as to whether the knife was closed or open. The witnesses differ upon this phase of the case. When deceased used the language and started towards appellant with his knife, appellant kicked, or kicked at, the deceased, and deceased struck him a blow which staggered him backward, and he came very near falling. Deceased continued to advance. Appellant jerked his pistol and fired. It is not the purpose of this opinion to go into a detailed statement of the testimony. It is quite voluminous, but this is a sufficient brief summary of this attitude of the case.

The defense urged that the court failed to charge the jury upon the issue of uncommu-nicated threats under the circumstances. Appellant excepted and requested in writing a special charge submitting the issue, which was also refused by the court. In signing the qualification the judge seems to have been under the impression, and so stated, that it would have been a charge upon the weight of the evidence, and intimates that was not the law in Texas until a recent decision, and he was under the impression that under that decision the facts were peculiar. He further seemed to entertain the idea that it would not furnish a criterion for a rule that a charge on uncommunicated threats should be given.- Whether a charge on uncommunicated threats should be given or not would depend upon the facts of the particular case. It has been held that it is not necessary to charge upon such threats in some instances when self-defense is an issue. Dobbs v. State, 54 Tex. Cr. R. 552, 113 S. W. 923; Washington v. State, 56 Tex. Cr. R. 197, 119 S. W. 689.

But that rule does not obtain except in instances where the testimony does not raise the issue as to who began the difficulty. Wherever it is an issue as to who began the difficulty, and the issue of self-defense is involved upon that question, it is the rule, and has been often held, that the failure to charge on uncommunicated threats is erroneous, unless it be of no importance in the case. See Lancaster v. State, 66 Tex. Cr. R. 656, 148 S. W. 307. But those cases are not applicable to this case as developed by the facts. The rule is definitely settled that, when the issue is of vital importance as to who began the difficulty, the. court should charge as to the uncommunicated threats of deceased. Kirklin v. State, 73 Tex. Cr. R. 255, 164 S. W. 1016; Huddleston v. State, 54 Tex. Cr. R. 98, 112 S. W. 64, 130 Am. St. Rep. 875; Pape v. State, 54 Tex. Cr. R. 464, 113 S. W. 759; Trotter v. State, 37 Tex. Cr. R. 468, 36 S. W. 278; Pitts v. State, 29 Tex. App. 374, 16 S. W. 189; Levy v. State, 28 Tex. App. 203, 12 S. W. 596, 19 Am. St. Rep. 826. See, also, State v. Blee, 133 Iowa, 733, 111 N. W. 19.

It is a rule of universal application that the charge must always be conformed to the facts and the issues arising in the particular ease on trial. Whatever those issues are as presented by the evidence, the charge must be given as thereto applicable, and it would •not require citation of authorities to show it is error ,to fail to charge on the issue of self-defense when that issue is in the case, and, self-defense being in the case, the charge must fit the facts that present that issue. If provoking the difficulty arises from some act of the defendant, his right of self-defense may be curtailed by such provocation and his purpose involved in such provocation. If he brought about or provoked the difficulty to kill, the case is usually one of murder. If only for a less purpose, the case will be usually one of manslaughter, although the slayer might be forced to kill in self-defense. This is too well settled for discussion, but in such contingencies the accused is assumed to be in the wrong as he brought about the occasion for the killing. Sometimes this is known as imperfect self-defense. If the deceased produced the occasion or brought about the difficulty, the slayer is justified in meeting such provocation as the facts attending the homicide or difficulty may disclose. Uncommunicated threats as a general rule are provable in murder trials and homicide cases when the evidence raises the issue and; leaves in doubt the question as to which of the parties to the homicide began the attack. The cases already cited illustrate this rule and are in point. See, also, Wharton’s Crim. Ev. (9th Ed.) § 757. This is true where the issue of self-defense is in the case. Who was the aggressor, or who produced the difficulty, is often a vital question in homicide. If the defendant was in the wrong under either view, his claim of self-defense is thereby weakened. If deceased was the aggressor and provoked the difficulty or began it, self-defense would thereby become more favorable to the accused. If the issue be in doubt under the facts of the ease, the uncommunicated threats tend to strengthen the issue of communicated threats as well as to bear upon and solve the question as to who began the difficulty, and may characterize the seriousness of the attack upon the accused. This may bear upon the act of defendant in slaying his adversary. These rules have been pretty .thoroughly understood and well adjudicated in the jurisprudence not only of Texas, but wherever the rule has come under investigation in the courts generally of the federal Union. This issue was before the jury that tried appellant. The state claimed by its testimony that appellant produced the occasion and began the difficulty. There is quite a lot of evidence to the effect both from the defendant and state’s witnesses that deceased began the difficulty. The court charged upon communicated threats, but refused to charge upon uncommunicated threats. If the jury had understood the value of the uncommuni-cated threats, legally speaking, under an appropriate charge from the court, the result of this case may have been different. The charge upon communicated threats give the jury to understand that the defendant believed his life was in danger from the acts of deceased, viewed from his demonstrations and acts at the time of the shooting. They may have believed and could have believed the state’s version of it, that appellant was the aggressor, and his communicated threats were valueless, but, if they had been informed that the uncommunicated threats would tend to solve the question as to who began the difficulty, it would have intensified the value of the communicated threats and give color and tone to the actions of deceased in advancing upon appellant under the circumstances detailed. However, the rule is well settled under such circumstances as detailed in this record that the accused is entitled to a charge on uncommunicated threats.

The judgment therefore will be reversed, and the cause remanded. 
      <&wkey;For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     