
    DECEMBER, 1924.
    Tom Garner v. The State.
    No. 8046.
    Delivered December 17, 1924.
    Rehearing denied April 22, 1925.
    1. —Manslaughter—Charge of Court — Provoking Difficulty.
    Where on a trial for manslaughter, the court’s charge on provoking the difficulty is assailed by reason of the use of the expression “Or if defendant provoked the difficulty that resulted in the death of the deceased, and by his own wrongful act if any, “produced a necessity for taking the life of deceased, etc.,” the entire charge upon the subject must be considered. The wording of the charge both preceding and following the particular language criticised maltes it clear that the objection is not well taken. Distinguishing Mason v. State, 88 Tex. Crim. Rep. 642, 228 S. W. 952.
    2. —Same—Charge of Court — Approved Charge.
    In the case of Puryear v. State, 56 Tex. Crim. Rep., 231, 118 S. W. 1042 a charge on provoking the difficulty was approved by this court, in an opinion . by Judge Ramsey. This charge has been followed in the instant case, the only changes made being those called for by the different facts and circumstances of the two cases. We find no error presented in the submission of this issue in the present case. Following Puryear v. State, 56 Tex. Crim. Rep., 231, 118 S. W. 1042.
    3. —Same—Special Charges — Properly Refused.
    Upon a former appeal of this case, it was held that a special charge then refused by the trial court should have been given. The same charge was again refused upon the present trial, 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 covering the same subject.
    4. —Same—Special Charges — Properly Refused — On Weight of Testimony.
    Where special charges are so framed as to be upon the weight of the testimony, as many were in the instant case, they should be refused.
    5. —Same—Special Charges — Provoking Difficulty — Practice.
    Where a special charge singles 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, without embracing all of the acts of appellant as presented by the evidence, such special charge was properly refused.
    
      6. —Same—Evidence—Absent Witness — Reproducing—Predicate.
    As a predicate for the reproduction of the testimony of the absent witness, 'Gunn, who had testified at a former trial, it was shown that witness had moved from this state to New Mexico, and when last, seen was in Albuquerque in said state, and was not at or near his former residence in this state, this predicate is held, sufficient to warrant the use of his testimony given on a former trial. Distinguishing Anderson v. State, 170 S. W. 142, Wingo v. State, 229 S. W. 859 and Smith v. State, 85 S. W. 1153. Following Brent v. State, 89 Tex. Crim. Rep. 546 and other cases.
    ON KEHEARING.
    7. —Same—Charge of Court — Provoking Difficulty.
    Numerous exceptions were reserved 'and special charges were requested and refused on the law of provoking the difficulty and imperfect self-defense. The court’s main charge on this issue is copied in the opinion, and we believe obviated the necessity for giving any of the special charges on the subject of self-defense. The jury was clearly told that if they did not believe beyond a reasonable doubt that the appellant provoked the difficulty, that his right to kill deceased in his own self-defense was perfect.
    Appeal from the District Court Cottle County. ' Tried below before the Hon. J. H. Milam, Judge.
    Appeal from a conviction for manslaughter; penalty, five years in the penitentiary.
    This is the second appeal. The opinion upon the first will be found reported in 89 Tex. Crim. Reps. 486-231 S. "W. 389.
    
      A. J. Fires, G. E. Hamilton, and Williams & Martin, for appellant.
    
      Tom Garrard, State’s Attorney, and Grover C. Morris, Assistant State’s Attorney, for the State.
   HAWKINS, Judge.

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.’a part, if there was such, was reasonably calculated to nrovoke 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 wrongful act, if any, produced a necessity for taking the life of the deceased, but in doing so, if he did 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 anywise 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 endorsement 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 criticised 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 the 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 covering 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 anywise 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 right 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 Cooksey that he was acquainted with Gunn and thought he was then living at Albuquerque, New Mexico; that 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, New Mexico; 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, New Mexico. Whitten upon this point testified that he did not know where Gunn was living at the present time but that he saw him in Temporal, New Mexico about the first of July, 1922; that Gunn was attending a trial there and told witness he was living at Cuba, New Mexico; that Gunn moved away from Motley County, Texas about the first of January, 1922; witness said he was well acquainted in the part of Motley County where Gunn had lived and had no 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,-Tex. Cr. R.-, 170 S. W. 142; Wingo v. State, -Tex. Cr. R. -, 229 S. W. 859;-Smith v. State, - Tex. Cr. R. -, 85 S; W. 1153. We do not regard these cases 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 that showing that no witness knew, where the absent witness was a.t the time of 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, - Tex. Cr. R. -, 144 S. W. 1006; Brant v. State, 67 Tex. Cr. R. 155, •- S. W. -; Menges v. State, 21 Tex. Cr. R. 413; S. W. --- Whorton v. State, 69 Tex. Cr. R. 1. - S. W. -. 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 ai jurisdiction, the evidence is admissible; otherwise when his absence is only temporary, and in this case the evidence was that the removal was permanent, and when it is once shown that the witness has permanently removed beyond the jurisdiction of the court, it is not necessary to show his exact whereabouts on the day of 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.

Affirmed.

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

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 not 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 rough house, 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 its 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 wisdom 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 this point is set out at length in our former opinion. After stating in term 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. 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., that 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 Texas Crim. Rep. 98, and Shoemaker v. State, 160 S. W. Rep. 356, are cited as holding with appellant’s view. In each of those eases 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 case 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 provide the difficulty. We think the converse as given in the charge is 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 such conduct and language as was reasonably calculated to provoke the difficulty, that appellant’s right of self-defense was perfect. If there was an ag’reement 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 repeated^ 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 and 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. (Art. 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 eight 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 excéption 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 no 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 of 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 Gamer, 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 him, 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 death or serious bodily injury at the hancls 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.

Overruled.  