
    CARAWAY v. STATE.
    (No. 9966.)
    (Court of Criminal Appeals of Texas.
    April 14, 1926.
    Rehearing Denied May 26, 1926.
    On Application to Pile Second Motion for Rehearing, June 25, 1926.)
    1. Jury &wkey;70(2) — Requiring trial by regular jury held not reversible error, where accused had been convicted of manslaughter on former trial, as case- was therefore not capital.
    Requiring accused to be tried by regular jury rather than by special venire held not reversible error, where accused had been acquitted of murder and convicted of manslaughter on former trial, as case was therefore not capital. '
    2. Criminal law &wkey;>829(l).
    Eailure to give instructions held not reversible error, where identical matter was presented in main change in practically language suggested.
    3. Criminal law <&wkey;829(5) — Refusal to Instruct that acts did not deprive accused of right of self-defense, unless committed to occasion the difficulty, held not reversible error, where court instructed to acquit if defendant did not intentionally provoke difficulty.
    Refusal to charge that accused’s acts did not deprive him of right of self-defense, unless committed for purpose of occasioning difficulty, held not reversible error, where court instructed to acquit if accused did not intentionally provoke difficulty.
    4. Criminal law <&wkey;364(6) — Conversation with accused from one to three hours after shooting and after talking with others held inadmissible as res gestas.
    In homicide ease, testimony of witness as to conversation with accused several hundred yards from place of shooting and from one to three hours afterwards, and after accused talked with others, held inadmissible, as it was not res gestee.
    5. Criminal law <&wkey;958(4) — Refusing new trial, asked on ground of newly discovered witness, was not reversible error, where witness’ affidavit was not attached and motion did not bring testimony within rule of newly discovered evidence (Vernon’s' Sayles’ Ann. Civ. St. 1914, art. 2019).
    Denying motion for new trial, made on ground of newly discovered witness, was not reversible error, where witness’ affidavit was not attached to motion and motion wholly lacked requirements to bring testimony within rule of newly discovered evidence under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 2019.
    On Motion for Rehearing.
    6. Homicide <&wkey;300(3) — In homicide case, instruction that, “in connection with the foregoing charge on-self-defense, you are further instructed,” followed by law of provoking the difficulty, held not reversible error as blending defenses.
    In homicide case, instruction that, “in connection with the foregoing charge on self-defense, you are further instructed,” followed by the law of provoking the difficulty, held not reversible error as blending the defenses, as the law requires only that each be put distinctly without undue emphasis on the law of provoking the difficulty.
    Commissioners’ Decision.
    Appeal from District Court, Hardin County; J. M. Combs, Judge.
    T. B. Caraway was convicted of manslaughter and he appeals.
    Affirmed.
    See, also, 98 Tex. Cr. R. 119, 263 S. W. 1063.
    Dycus & Shivers, of Port Arthur, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeek, for the State.
   BERRY, J.

Tile offense is manslaughter, and the punishment is 3 years in the penitentiary. This is the second appeal of this case. The result of the first appeal is reported in 98 Tex. Cr. R. 119, 263 S. W. 1063, where a sufficient statement of the facts may be found.

Appellant’s first complaint is at what he terms the fundamental error of the court in requiring defendant to be tried by the regular jury rather than by a special venire. There is no bill of exceptions in the record presenting this matter, and no' fundamental error is shown. In any event, the fact that appellant had been acquitted of the offense of murder and convicted of manslaughter on a former trial makes it certain that this was not a capital case at the time of the last trial. Gentry v. State, 67 Tex. Cr. R. 567, 152 S. W. 635; Clay v. State, 70 Tex. Cr. R. 451, 157 S. W. 165.

By various methods appellant complains at the court’s main charge, because it failed, as he alleges, to charge the jury directly on self-defense, without mixing it with other questions. We do not think that the charge is subject to the objections urged to it. In a separate and distinct paragraph, the court affirmatively and properly submitted appellant’s theory of self-defense. The charge as thus presented is as favorable as the law requires. It is true that in a separate paragraph of the court’s charge the issue of provoking the difficulty was presented in connection with the court’s charge on self-defense. The charge on provoking the difficulty, however, seems to be in accord with the precedents in this state, and we think there is no error manifested by this record with reference to this matter.

Appellant also complains at the alleged failure of the court to instruct the jury that defendant had a right to go into his field at the time of the shooting to put the hogs out, and that, if he believed that his life was in danger, he had a right to carry a gun for his protection.- This identical matter was presented by the court in his main charge in practically the language suggested by appellant in his exceptions.

By further complaint, appellant contends that.the court erred in failing to instruct the jury that, if the defendant struck Mrs. Will Jackson to free his gun or to get her away, thinking at the time that she was aiding or assisting her husband to take his life, he had a right to strijre her. The record discloses, that the court presented this matter in almost literally the same language as that in which appellant contends that it should have been presented.

Appellant also complains because the court refused to instruct the jury that they could not consider any act of the defendant in such way as to deprive him of any right of self-defense unless he did the act for the purpose of bringing on the difficulty. The court in his main charge instructed the jury that, if the defendant did not Intentionally provoke said difficulty by striking the wife of the said Will Jackson or by intentionally committing some act or acts reasonably calculated and with the intent of causing the said Will Jackson to make, an assault upon the defendant, or if they had a reasonable doubt thereof,, then the defendant’s right of self-defense would not be limited and the jury should find him not guilty. The charge as given was certainly as favorable as could have been asked by the appellant on this issue.

Complaint is also made at the court’s action in refusing to permit the appellant to prove by the witness C. R. Kirkendall that he was sent for by the defendant immediately after the homicide, and that he went to the bedside of the defendant, and that defendant told Kirkendall that Mrs. Jackson undertook to take his gun away from him for the purpose of permitting her husband, Will Jackson, to shoot him and that he saw them talking some distance before he reached the point where said Mrs. Jackson was standing, and that he felt sure they .were planning to carry out the threat formerly made by Will Jackson to kill the defendant, and further that the shooting was done under circumstances showing that appellant acted in self-defense. The court, in qualifying this bill, states that, after the shooting, defendant returned to his home several hundred yards away, and afterwards sent for the witness Kirkendall, who lived more than a mile away. The court further qualifies this bill by stating that ttye excluded testimony was as to a self-serving statement relative to the shooting made by the defendant, and that the witness who heard the shooting testified that this conversation with defendant occurred from an hour or an hour and a half to three hours after the shooting, and that the witness Kirkendall was not the first party to reach defendant, as he was at home with members of his family when witness arrived. The court also refers us to the statement of facts on page 48 thereof as a part of his qualification of this bill. By reference to the page of the statement of facts referred to by the trial court, we find from Kirkendall’s testimony.that he testified himself that it must have been somewhere about one and a half to three hours between the time of the shooting and the time he talked to the defendant. We think the court correctly excluded this testimony. We find nothing in the bill, considered in connection with the court’s qualification thereto, that would bring it' within the rule of res gestae.

By another complaint appellant alleges that the court erred in not granting a new trial by reason of the newly discovered evidence of one W. R. Gore. The affidavit of Gore is not attached to the motion for a new trial, and the motion is wholly lacking in the requirements which would bring this testimony within the rule of newly discovered evidence. Article 2019, Vernon’s Sayles’ Civil Statutes; section 197, Brandi’s P. 0.

Finding no error in the record, the judgment is in all things affirmed.

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.

On Motion for Rehearing.

HAWKINS, J.

The conviction is assailed upon the ground that the charge of the court offended against the law and precedents in framing the charge on the law of self-defense and provoking the difficulty. The specific criticism is the averment that the charge on self-defense is not in separate and distinct form from1 that of provoking the difficulty. An examination of the authorities cited fails to convince us of the soundness of the appellant’s contention as applied to the particular charge in hand. The court, in paragraph 4, after stating the law of manslaughter and the application to the facts of that offense, instructed the jury upon the law of self-defense in several paragraphs, in the first of which the law of self-defense is stated in the abstract/ and in the second application is made of that to the facts. The concluding part of the paragraph we quote:

“ * * * And that, acting upon such reasonable expectation or fear of death, or serious bodily injury, the defendant» fired at the said Will Jackson, and killed the said Marvin Leo Jackson, or, if you have a reasonable doubt thereof, then you should acquit the defendant and say by your verdict 'not guilty,’ and, if the said Will Jackson was armed at the time defendant shot at him, if he did shoot at him, and was making' such attack upon him with a gun, then the law presumes that the said Will Jackson intended to kill or inflict serious bodily injury on defendant.”

The succeeding paragraph begins thus:

“In connection with the foregoing charge on self-defense, you are further instructed,” etc.

It is not in the terms in which the law of self-defense is put to the jury that is made the subject of complaint, but if is insisted that by the use of the expression last above quoted, namely, “in connection with the foregoing charge on self-defense, you are further instructed,” that the court blended the charge on self-defense with that of provoking the difficulty, and improperly and unduly incumbered a charge on the law of self-defense following the words last mentioned and quoted. It is believed that the precedents cited do not support the appellant’s contention. In the cases relied upon the charge on provoking the difficulty and the charge on self-defense were intermingled. For instance, in Castro’s Case (Tex. Cr. App) 40 S. W. 987, the paragraph of the charge upon the law of self-defense concluded thus:

* * * Unless you believe that the defendant, after being struck by Cabazos, retired and armed himself, and then returned and called for Cabazos, for the purpose * * * of killing him.”

In Drake’s Case, 45 Tex. Cr. R. 273, 77 S. W. 7, there was a complaint of the paragraph of the charge on self-defense. There was embraced a condition of qualification, of which the court said:

“Charging on self-defense, the court in every instance qualified this issue with a charge on provoking the difficulty.”

In the case of Vann v. State, 45 Tex. Cr. R. 434, 77 S. W. 813, 108 'Am. St. Rep'. 961, the charge on self-defense had many vital defects. The same is true with reference to the charge on provoking the difficulty. As we understand the record, there was embodied in each charge on self-defense a paragraph to this effect, “If you do not believe that the defendant provoked the difficulty,” etc.

In Price’s Case, 46 Tex. Cr. R. 80, 79 S. W. 540, the charge applying the law of self-defense to the facts was interwoven with the qualifying instruction touching the law of provoking the difficulty.

In the other cases to which we are referred, namely, Burnett v. State, 51 Tex. Cr. R. 20, 100 S. W. 381, Beard v. State, 47 Tex. Cr. R. 50, 81 S. W. 35, 122 Am. St. Rep. 67, McMillan v. State, 58 Tex. Cr. R. 525, 126 S. W. 875, Gray v. State, 55 Tex. Cr. R. 90, 114 S. W. 635, 22 L. R. A. (N. S.) 513, and Sprinkle v. State, 49 Tex. Cr. R. 224, 91 S. W. 787, if they relate to the subject at all, the charge on the law of provoking the difficulty was faulty in some of the elements essential to its sufficiency. The general principle announced, namely, that, when a charge on provoking the difficulty is authorized, there should be given a distinct charge upon-that subject and a separate charge upon self-defense must be construed in the light of. the facts before the court at the time of the announcement. It is obvious that it is not possible to instruct the jury on the law of provoking the difficulty without making some reference to the law of self-defense. The two are inseparable, as one is dependent upon the other. What the law requires is that each be distinctly put to the jury without undue emphasis on the law of provoking the difficulty, and without intermingling the two so as to bring about a confusion in the minds of the jury.

In using the words, “in connection with the foregoing charge on self-defense, you are further instructed,” the court followed a practice which has often been found, and which, so far as we are aware, has never been condemned. It has been declared that the court should refrain from giving an abstract statement touching the law of provoking the difficulty, and in the present case such statement could, with propriety, have been omitted. Moore v. State, 96 Tex. Cr. R. 493, 258 S. W. 476; Carlile v. State, 96 Tex. Cr. R. 37, 255 S. W. 990. However, the complaint is not of the abstract statement but of the beginning in. the words quoted. Following the abstract statement there is in the charge an unexceptional application of the law to the facts. It embraces the elements of the law of provoking the difficulty and the converse thereof in accord with the tule announced in the Mason Case, 88 Tex. Cr. R. 642, 228 S. W. 952, and precedents there cited.

The motion is overruled.

On Application to File Second Motion for Rehearing.

The application has been examined. It presents no questions not already considered and discussed, and we fare not impressed that our disposition of the point emphasized was erroneous. Leave to file the second motion is therefore denied. 
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