
    BLACKWELL v. STATE.
    (No. 9870.)
    (Court of Criminal Appeals of Texas.
    March 3, 1926.)
    1. Homicide &wkey;>301 — Charge that, if defeno-ant, when he came to his father’s rescue and shot and killed deceased, knew his father had sought meeting with deceased to kill him or inflict serious bodily harm on him, defendant would be guilty of murder, held erroneous.
    In murder prosecution, charge on provoking difficulty held erroneous, as telling jury that if accused shot and killed deceased, knowing that his father had sought meeting with deceased for purpose of inflicting death or bodily injury upon him, and knowing all these facts had come to father’s rescue, when father was driven to extremity of defending his own-life, he would be guilty.
    '2. Homicide <&wkey; 112(5) — Right of self-defense exists after seeking party with intent to provoke difficulty, unless, after finding adversary,
    ' difficulty is provoked by words or acts with intention, of causing adversary to make attack.
    One may seek a party with intent to- provoke difficulty, but does not forfeit his right of self-defense, unless, after he has found his adversary, he provokes difficulty by words or act with intention and purpose of causing adversary,to make attack.
    Commissioners’ Decision.
    Appeal from District Court, Coryell County; Joe H. Eidson, Judge.
    Clifford Blackwell was convicted of murder, and he appeals.
    Reversed and remanded.
    T. R. Mears, of Gatesville, for appellant.
    McClellan & Cross, of Gatesville, Sam D. Stinson. State’s Atty.,. of Austin, and Nat ■Gentry, Jr., Asst.. State’s Atty., of Tyler,, for the State.
   BERRY, J.

The offense is murder, and the punishment is 5 years in' the penitentiary.

The appellant and his father, Ed Blackwell, were each indicted for the killing of Potter Wolfe. The appellant, Clifford Blackwell, was alone placed on trial. The facts proved by the state are sufficient, if believed by the jury, to show an unprovoked killing. The appellant’s testimony clearly raised the issue of self-defense. The court gave in charge, at the request of the state, the following:

‘.‘At the request of counsel for the state, I give you the following in charge as the law applicable to this case, to be considered by you equally as though embraced in the main charge: If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Clifford Blackwell, at the time that he shot and killed the deceased, if you find that he did so, knew that his father, Ed Blackwell, had sought -a meeting with the deceased for the purpose of inflicting death or serious bodily injury upon the deceased, and you further find from the evidence beyond a reasonable doubt - that the defendant, Clifford Blackwell, knowing all these facts, had come to the rescue of his father when his father was driven to the extremity of defending his own life, if you find that he was driven to such an extremity from all the facts in evidence before you,, and shot and thereby killed the deceased under such circumstances, then you will find the defendant guilty, and asses-s his punishment in accordance with other • instructions- given- you in the main charge. In this connection, however, you are instructed that the acts, if any, of the said Ed Blackwell in the bringing on of said difficulty and seeking the deceased if you find that he did so- from the evidence before you beyond a reasonable doubt would in no wise be binding upon the defendant, unless you find from the evidence that the defendant knew of same.”

The appellant pertinently objected to the giving of this charge, first, on the ground that the issue of provoking the difficulty by Ed Blackwell was not in the case and, second, that the charge of the court upon that issue does not properly state the law on provoking a difficulty. We cannot agree with appellant’s first contention. We.think the evidence is perhaps sufficient to raise the issue of provoking the difficulty on the part of E'd Blackwell. The charge as given on this issue, however, is not a correct statement of the law, and, even if Ed Blackwell himself had been on trial, it would not have been a correct exposition of the law. It will be observed that the court tells the jury that, it they believed that at the time the defendant shot and killed the deceased he knew that his father, Ed Blackwell, had sought a meeting with the deceased for the purpose of inflicting death or serious bodily injury upon the deceased, and- if they further' find from the evidence beyond a reasonable doubt that Clif- . ford Blackwell, knowing all these facts, had come to the reselle of his father,'when his father was driven to the extremity of defending his own life, and sRot and thereRy killed the deceased under sucR circumstances, then to find the defendant guilty and assess his punisRment according to the other instructions. This cRarge is criticized in many ways by the appellant, and we tRink justly so. An accused may seek a party with intent to provoke a difficulty, but Re does not forfeit his right of self-defense unless, after Re Ras found his adversary, by words or acts or both Re then in fact provokes the difficulty. In fact, it Ras been Reid that Re must go further than even this before his right of self-defense can be so limited. He must not only Rave intended to provoke his adversary in order to gain the vantage ground of acting apparently on the defensive, but Re must do something or say something, either or both, with the intention ánd purpose o£ causing his adversary to make the attack, and then the things Re does or says must be reasonably calculated to effect that object. Mason v. State, 228 S. W. 062, 88 Tex. Cr. R. 642; Caraway v. State, 263 S. W. 1063, 98 Tex. Cr. R. 119; Woodward v. State, 97 S. W. 499, 50 Tex. Cr. R. 294; Vann v. State, 77 S. W. 813, 45 Tex. Cr. R. 434, 108 Am. St. Rep. 961.

TRe question of a correct charge on provoking the difficulty is very fully and learnedly discussed by Judge Hawkins in the Mason Case, supra, and the cRarge given in this case in no wise complies with the rules there announced.

In view of another trial, we think it proper to say that the appellant should be permitted to prove the statements made to Rim by Ed Blackwell as to what Blackwell told the appellant as to where Re was going and why Re left the appellant to go to the church Rouse where the difficulty subsequently occurred. TRe other complaints raised by the appellant, which are likely to occur on another trial, we think are without merit.

For the errors above discussed, the judgment of the trial court is reversed, and the pause 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. 
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