Bunk Allen v. The State, 24 Tex. Ct. App. 216

Hurt, Judge. Under an indictment charging him with the murder of Tom Gill, appellant was convicted below of the second degree of that offense. A number of witnesses for the State testified that appellant fired first in the interchange of shots which led to the homicide; others for the State timed the first firing as so nearly simultaneous that it was impossible to say which of the two took the initiative. Two witnesses for the defense testified that deceased fired first; others were in doubt.

But the testimony of all left beyond dispute these facts: There had been a passage of words between appellant and deceased; angry and accompanied with a show of violence on the part of the deceased, and deprecatory— in semblance at least—on the part of appellant. In response to appellant’s disclaimer of certain threatening and abusive language, attributed to him by deceased concerning himself, deceased had closed the controversy with the reply: “That settles it, then;” and, returning the pistol he had displayed to his pocket and walking off, his back was turned to appellant.

Before he was out of hailing distance, deceased was stopped with the exclamation from appellant: “We had as well settle this thing now,” or words of that import, accompanying the words with the display of a pistol held in both hands, which he almost immediately thereafter used with deadly effect. As to this renewal of the difficulty after it had been abandoned by deceased, both by word and act, there is no sort of conflict in the testimony.

It is well settled in principle that, where one willingly enters into a deadly conflict, or “provokes the contest, or produces the occasion, in order to have a pretext for killing his adversary or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat.” (Cases on Self Defense, H. & T., 227, and note; Reed v. The State, 11 Texas Ct. App., 509; King v. The State, 13 Texas Ct. App., 277; White v. The State, 23 Texas Ct. App., 163; Peters v. The State, 23 Texas Ct. App., 687; The State v.

Partlow (Mo.), Southwestern Reporter, May 16, 1887.) The application of this principle to the facts of this case completely eliminates the question of self defense, whence it follows that the errors complained of in the admission and rejection of testimony—if indeed they be errors—become immaterial and harmless. It is made subject of complaint that, in instructing the jury as to the legal consequences of appellant’s renewal of the difficulty —if they should find that appellant did renew it—the court erred in failing to direct the jury that they might inquire into the intent with which it was renewed.

To this it is answered that every instruction given by a court to a jury in the trial of a cause should be confined to the issues made by the facts. We are of opinion that the undisputed facts of this case relieved the court of the duty of charging upon the intent. Intent is a condition of the mind, to be spelled out from outward acts or spoken words. In this case the act was the presenting of a pistol within range, held in both hands, presumably to secure greater accuracy of aim.

The words accompanying the act conveyed a desire and intention to “settle” the matter then and there, with a deadly weapon as the arbitrator. Spelling out the intent in the light reflected from the word and act, its reading and

interpretation can not fairly be treated as an open question. It is further urged that the court erred in instructing the jury that “it would be immaterial whether the danger was real, provided the defendant acted upon the real appearance of danger.” The specific objection raised is that “it limits and abridges the right of the defendant to act upon real appearances of danger, and omits reasonable appearances of danger.” The same general answer applies to this objection as to the one preceeding.

Danger with reference to whether the appearance of it is “real” or “reasonable,” takes its classification under one or the other, according as whether the manifestatións are positive, threatening and imminent, or are merely such as reasonably create alarm and apprehension for one’s safety. “Real” danger is a danger such as is manifest to the physical senses; “reasonable” danger, as the very force of the term imports, is something to be judged of by an exercise of reason and judgment, exercised upon acts which require construction to render their meaning apparent.

It is manifest from the facts in evidence that whatever danger there was to appellant, if any at all, was realj and hence the court discharged its duty when it instructed the jury upon that character of danger, it not being bound to instruct upon another form of danger, which the facts not only did not present, but absolutely precluded. Opinion delivered November 9, 1887. The evidence in the record amply supports the verdict and judgment; and, the rulings and charges of the court being free from reversible error, the judgment is affirmed. Affirmed.