Leito v. State

BROOKS, Judge. Appellant was convicted of murder in the second degree, and his punishment fixed at confinement in the penitentiary for thirteen years. Appellant’s wife, Bertie Leito, testified that deceased was armed on the night of the homicide, was in and about Gables’ saloon all night, drinking, cursing and displaying a pistol. At one time, while displaying the pistol he announced ‘lie was going to get some damn son of a bitch in that place before morning.” The same witness testified that deceased and appellant had been together a good deal that night, and for that reason she told appellant deceased was armed, and about the threats he made. George Warren, State’s witness, corroborates the witness Bertie Leito as to the pistol and deceased’s threat. Appellant testified that he wanted to get away from deceased, because his wife had told him that deceased was armed, and what deceased had said; and further, that at the time of the shooting deceased called him a damn son of a dutch, turned towards him and started to pull his gun. Witnesses for the defense further testify that deceased at the time of the killing was endeavoring to draw his pistol. We do not think this evidence authorized the court to charge on threats. This is practically all the testimony that even remotely bears on threats. It is too general a declaration on which to predicate a charge on threats. The fact that deceased was drinking and vowing he was going to kill some one in the house would not carry with it a threat against appellant, such as authorized a charge on the line suggested. Nor do we think the evidence suggests the issue of an accidental killing. Nor is the evidence of that character as authorized the court to charge on negligent treatment of a physician. Appellant complains of the charge of the court on provoking the difficulty, which is as follows: “If you believe that defendant committed the assault as a means of defense, believing at the time he did so (if he did do so) that he was in danger of losing his life or of serious bodily injury at the hands of the said Thomas Woolsey, then you will acquit defendant, unless you further believe from the evidence beyond a reasonable doubt that the defendant sought the meeting with *313 the said Thomas Woolsey for the purpose of provoking a difficulty with said Thomas Woolsey with intent to take the life of said Thomas Woolsey or to do him such serious bodily injury as might probably end in the death of said Thomas Woolsey and if you so believe from the evidence beyond a reasonable doubt, then you are instructed that if the defendant sought such meeting for the said purpose and with such intent, defendant would not be permitted to justify on the ground of self-defense, even though he should thereafter have been compelled to act in his own self-defense; but, if he had no such purpose and intention in seeking to meet the said Thomas Woolsey, then his right of self-defense would not be forfeited, and he could stand his ground and defend himself by the use of such means of defense as the facts and circumstances indicated to be necessary to protect himself from danger or what reasonably appeared to him at the time to be danger.” This charge is erroneous. The mere fact that one seeks a party for the purpose of provoking a difficulty, would not forfeit his right of self-defense. He must do some other act or utter some word at the time calculated to provoke a difficulty before his right of self-defense would be forfeited. The mere seeking of it for that purpose, without provoking it, would not forfeit that right. We have discussed this phase of the law of provoking the difficulty so often that we do not see fit to further elaborate on the proposition, but refer to the decisions. McCandless v. State, 42 Texas Crim. Rep., 58; Bearden v. State, 79 S. W. Rep., 37; Dent v. State, 79 S. W. Rep., 525. Furthermore, we do not believe that the evidence suggests the issue of provoking the difficulty at all. The bare presence of appellant would not be a predicate for such a charge. We have searched the records closely and find no overt act or statement of appellant, showing that he did provoke the difficulty. Appellant’s testimony shows that deceased cursed him a short while before and immediately at the time of the shooting in which deceased lost his life. This being the condition of the record, it was error for the court to charge thereon at all. In the absence of some malpractice on the part of the physicians, causing deceased to lose his life, and that such malpractice was the proximate cause of the death, we do not believe appellant was entitled to a charge on assault with intent to murder or aggravated assault. Upon another trial, if the evidence in reference to the death of deceased is the same as in this record, we would suggest that such charges be not given. The judgment is accordingly reversed and the cause remanded. Reversed and remanded.