225 S.W. 1099 | Tex. Crim. App. | 1920
Appellant was convicted of manslaughter and his punishment assessed at two years in the penitentiary.
It was seriously controverted on the trial as to who began the difficulty. There is evidence from the witnesses for the State and appellant that deceased was the aggressor, even to the extent of provoking the difficulty. This evidence shows that deceased and appellant had had some trouble about settlements of financial matters which were finally compromised on the day of the homicide and preceding the difficulty. There were communicated threats by deceased to take the life of appellant. There are also uncommunicated threats made by deceased against the life of appellant.
At the time of the difficulty the two men met in the presence of eyewitnesses. The deceased had a knife in his hand and was accompanied by a Mr. Curtis. There was some conversation, and appellant bade deceased to go away, that he did not want any trouble with him. Deceased said to appellant that he had been acting the damn rascal with him for a year, and started towards him with a knife in his hand. The evidence is disputed as to whether the knife was closed or open. The witnesses differ upon this phase of the case. When deceased used the language and started towards appellant with his knife appellant kicked or kicked at the deceased, and deceased struck him a blow which staggered him backward, and he came very near falling. Deceased continued to advance, appellant jerked his pistol and fired. It is not the purpose of this opinion to go into a detailed statement of the testimony. It is quite voluminous, but this is a sufficient brief summary of this attitude of the case.
The defense urged that the court failed to charge the jury upon the issue of uncommunicated threats under the circumstances. Appellant excepted and requested in writing a special charge submitting the issue, which was also refused by the court. In signing the qualification the judge seems to have been under the impression and so stated that it would have been a charge upon the weight of the evidence, and intimates that was not the law in Texas until a recent decision, and he was under the impression that under that decision the facts were peculiar. He further seemed to entertain the idea that it would not furnish a criterion for a rule that a charge on uncommunicated threats should be given. Whether a charge on uncommunicated threats should be given or not would depend upon the facts of the particular case. It has been held that it is not necessary to charge upon such threats in some instances when self-defense is an issue. Dobbs v. State, 54 Tex.Crim. Rep.; Washington *240
v. State, 52 Tex.Crim. Rep.. But that rule does not obtain except in instances where the testimony does not raise the issue as to who began the difficulty. Wherever it is an issue as to who began the difficulty, and the issue of self-defense is involved upon that question, it is the rule and has been often held that the failure to charge on uncommunicated threats is erroneous, unless it be of no importance in the case. See Lancaster v. State, 66 Tex.Crim. Rep., 148 S.W. Rep., 307. But those cases are not applicable to this cause as developed by the facts. The rule is definitely settled that when the issue is of vital importance as to who began the difficulty, the court should charge as to the uncommunicated threats of deceased. Kirklin v. State, 73 Tex.Crim. Rep.; Huddleston v. State,
The judgment, therefore, will be reversed and the cause remanded.
Reversed and remanded.