*1 629 lоwing parole and revocation thereof said council an custody. to their order for return being respondent’s answer
The facts shown estab- hearing lished, concluded the the court remanded appeals. and he question application corpus raised
The for habeas grand pending jury. to bail action of the This question moot whеn indictment was became returned and the declining judge trial did not err in parte hear evidence. Ex 669, 2d and cases 290 cited. Davis S.W. proper This court is not the forum in which to validity juvenile delinquent commitment of to the Texas Council, parole by of the revocation
Youth said council. proceedings civil in are nature and validity Juvenile the civil cоurts. Ex their is for parte Rheude, Rep. 163 Texas 39, Cr. 239; Beal, al, parte Ex et Rep. S.W. 157 Texas 466, Cr. 2d 221. appeal is dismissed.
Ralph Muckleroy, Jr. v. State 29,294. No. December 1957. Appellant’s Rehearing Motion for Overruled February 26, 1958. *2 Pkenix, Houston, Wellborn, James N. Hender- Rex R.
Gordon son, appellant. McDonald, Tyler, curiae. amicus
Warren Austin, Attorney, state. Douglas, for the Leon State’s DICE, JUDGE. malice; punishment, the
The conviction is for murder with years’ penitentiary. confinement in the аppellant the de- undisputed the killed The evidence gun. appel- by shooting The the him a deceased was ceased father, occurred. home the homicide lant’s whose According appellant testimony, the and his wife to the state’s return day the to home on in went the deceased’s staying the wife. their had deceased child who been appel- stopping- in front the house After their automobile fight in and the who lant his wife into separate house, seeing them. upon the trouble came outside appellant the deceased In a scuffle which ensued between the away and then from the deceased took shovel brought house, arm, by him the him to shoved took him door, stаy the house. The deceased then him to front and told porch, and to back got pistol, told came out on got in Appellant and his wife then up, not do. which he would returned, very car, fast, and in a short time where- drove off car, shotgun squat- jumped out, from the took upon appellant began walking down drive- and then ted way down gun in his house with hand. the back towards standing outside of house with his who was The gun, approaching seeing with the wife, upon told baby, saying, "I don’t want him inside with his wife nothing him,” you fired you done haven’t kill because pistol in the direction of a shot with his Thereupon, but by neighbors heard shots were and the de- several being house, wife, was in the first that of who shot ceased’s shooting the deceased. After ceased pistol fired walking driveway carrying pellant seen down father automobile, hospital. he took him to the had shows the deceased shot one been and that shot time in the back side wounds cause of death. killing appellant that after It is further shown stated returning upon that he had shot his father and to the scene with *3 officers, single shotgun, pointed a out barrel which he said place had time and he used and such the officers found one shotgun exploded pistol shell. It is also that by shown fired by appellant on the occasion was delivered to the killing, at officers after the which time it contained three un- cartridges cartridges fired three had been fired. It that killing ap- was further shown about mоnth before the pellant that, daddy told quit messing his uncle “If his don’t going his business was to kill him.” Appellant testify interposed plea did not but of self-defense support and in thereof his called wife as a witness in his behalf. His wife testified that the reason the returned to home request deceased’s was because her of to return for getting child; purpose shotgun of their that was loaded they when returned and getting after out of the it; did not kneel down to load that get did not shotgun out of the car until the with pistol * * * hand, him, you “I his said know you have have rifle,” going you afternoon,” that “I am to kill this that shotgun pellant did not fire the until after the deceased had pistol. fired three shots find the support We evidence sufficient to the convictiоn and appellant’s
overrule contention that shows, evidence law, killing that in a matter of deceased acted in self-defense. also overrule contention that the evidence is support a conviction insufficient for murder with malice fact, is a Malice inferable from the circumstances, 632 killing place proof took gеnerally supported by that is se, per deadly and is weapon is of a of the use means Rep. State, Harvey Texas jury. v. 150 Cr. usually one for shooting of a shot- one with 332, The intended 201 2d 42. S.W. shooting jury to find that to authorize is sufficient State, Rep. Lovelady 150 Texas Cr. v. malice. actuated
was State, Rep. 1, 570; 216 153 Texas Cr. 50, Brown v. 2d 198 S.W. 301, Rep. State, 268 226, Texas Cr. Walker S.W. 2d 464. charge of sеlf-defense the issue in his submitted The court charged upon the law on instructions and in connection difficulty qualification as a thereto. objected on the issue and ground no to raise evidence there on the charge. giving such the court erred in insists person state that a who in- well settled in this The law pretext to kill tentionally provokes a to have order self-defense, thereby cannot injure forfeits his ground, though adversary killing this justify the p. necessary life. Texas Jur. to save own See and cases there cited. Sec. jury upon pro- the law of should instruct court issue,
voking difficulty raises the but it when the evidence the give charge raise a when the evidence does not such is error the issue. was not raisеd that the issue because there insists difficulty provoke the he intended to or that
was no evidence any immediately spoke or at any act or words before did killing reasonably calculated was to cause the which the time of difficulty. a contention, appellant upon support his cites and relies of In including early State, casеs, cases of the McCandless v. numerous 672, State, 58, and Crow Texas R. 57 S.W. v. 48 42 Texas Cr. charge 814, provoking a 419, which hold on R. 88 S.W. Cr. given unless the difficulty not be evidence shows should act or used some words intended some to and accused did bring difficulty. on a reasonably calculated to 406, State, Rep. Texas Cr. 120 v. 135 S.W. 2d
In Norwood court, upon of passing in whether 806, the évi- this diffi- charge provoking the "on a authorized dence in culty, said: something conduct, did his own act “If the reason- and it provoking of the intention upon an attack make provoke the deceased to ably calculated to pretext might for use as he, appellant, self- of deceased, his killing he forfeited then of the his own within was concealеd intentions were defense. What acts, words, and con- only from and can determined
mind be dispassion- reasonably lead they such would duct. If a diffi- provoke that he intended the conclusion ate mind to killing then the culty purpose for the of their determina- for the issue to sufficient to submit * * * tion. determining call- “Ordinarily there be evidence whether difficulty, trial court will ing on evidence, though beyond required State’s be evidence, true; might if there be such not be some cases this but issue, such the law of duty to submit it would court be might though on believe the evidence the trial court even theory provoking the diffi- to rebut of the accused be sustained or culty. the issue determination whether State, Crowley 117 Texas jury. v. for the See rеbutted would be Rep. 437; State, 372, 99 Texas Cr. Rep. v. Garner Cr. S.W. 618, 92.” 271 S.W. State, Rep. Texas Tapley Cr. recent case of case, supra, was cited with
256 proval 2d 583 opinion portion set out was above later quoted. court did not err in the instant case the
Under record difficulty. charging prior Appellant’s the scene after the return to taking deceаsed, getting father, out of the car *5 gun shotgun therefrom, and squatting down the car with the driveway walking the deceased with toward
then down the hand, as evidence intention on gun such an act to an in his was reasonably difficulty calculated to provoke a and one to thereby raise a fact difficulty and provoke a with jury’s determination. issue for the Statе, v. 149 Texas Cr. the cáse of Jones do not deem
We Rep. 119,192 controlling. by appellant, cited as here case is support cited of his contention the issue of not was raised because evidence showed that deceased fired the first case it was In Jones shot.
pointed out that there was no evidence that the ac- motion, words, any spoke cusd any performed any made act which caused the deceased to draw the on him. instant of the deceased’s wife
affirmatively the first shows reason the fired gun. shot appellant approaching was because saw fact, together circumstances, This dif- the other facts State, supra. ferentiates this case from that of Jones By exception appellant complains jury five of bills of certain argument of counsel. state’s
Appellant’s objection argument complained in the first ground four bills was on the that was a direct reference testify. to his failure to It is Exception certified in the Court’s Bill that the No. 1 argument counsel, everything of state’s “You else seem know
maybe you ought us,” appellant objected, to tell to which was appellant’s attorneys directed response to their ar- gument; hence no error is reversible shown. Exception argument
Court’s Bill of No. 2 relates to state’s posed counsel in which question counsel rea- to for what Kilgore. son the wanted to reflects Thе record argu- appellant’s wife testified that reason for the ment between she her the first husband on occasion of between and the deceased was because go Kilgore Further, she had refused to with the appellant’s objection bill reflects that the court sustained argument and instructed the to consider the same. No error is shоwn in the bill. argument complained Appel- find in the no error of in Exception
lant’s Bills of Nos. 11 12 wherein state’s counsel posed appellant’s as to what the business and work argued appellant’s was and in- with reference to what was the killing. argu- tention when he returned to the scene of Such legitimate clearly ment under not a the evidence testify. reference to the failure to *6 por- complains of that Exception By Bill of No. 15 stated, argument closing in which state’s counsel tion of get some wrong, you rampage a little why don’t “what Muckleroy, Ralph Sr. in here and tell witnesses to come * ** argument was on Appellant’s objection to the .” man bad had not ground and that he it was unsworn The record any deceased’s character. offered evidence of the deceased’s appellant, cross-examination that the on reflects wife, on other occasions from her that had elicited request and at her home the deceased’s had taken the from straightened such Ralph got out.” Under kept “until old man argument complained error. does not reflect evidence judgment is affirmed. Opinion approved the Court. REHEARING FOR
ON APPELLANT’S MOTION DAVIDSON, Judge.
Appellant presses upon the facts did us his contention giving charge upon provoking the diffi- authorize culty. gone
We are has further hold- aware of no decision which ing the facts warrant a on sufficient to reported State, 135 Texas Cr. than that in Norwood v. Rep. 406, 2d 806. are also aware of fact that unless Norwood court, here, charging provoking the diffi-
sustains the trial culty, on the utmost then this It case should be reversed. becomes importance, then, ex- in the two cases be the fact situations case controls. amined determine if the Norwood ill-feeling. began In the case there was Norwood controversy by filing complaint against the father, charging the deceased’s goats.
him A search with theft of warrant goats, for the stolen to search the Word ranch obtained there- the sheriff the ranch to the warrant. Soon went to execute companions, armed, accompanied by all after three request, аppeared charge the sheriff took ranch. At deceased’s companions appellant and his of the firearms while gun, premises. went to the house The deceased produced A search of the ranch which the sheriff took from him. goats. no stolen
At the conclusion events, of this series of Norwood stated that *7 he wanted the peaceable, “affair” to be statement de- replied by calling ceased coming attention to his act in on the time, ranch Word, armed. At that an Orville uncle of the de- ceased, Again called an stopped Norwood s-o-b-. the sheriff difficulty. existing This is up the situation when the affair broke “ ” telling Norwood’s “ the uncle that ‘he would see him later’ or ” again.’ ‘we will meet thereafter, A few hours the deceased and uncle his went parked town Burnet. Deceased car his in front and postoffice, leaving went into his uncle in the car. Norwood’s parked car was nearby. postoffice, While deceased was in the car, Norwood moved his immediately car behind the deceased’s in which the uncle was still As seated. deceased came from the postoffice approached and his car his he called uncle’s attention they the fact that Norwood had blocked them in so could get not him, out. Norwood then motioned to the uncle and said to “ ” here, Word, you.’ ‘Come around Mr. I want to talk to gun uncle, Deceasеd in reached his car for said to his “ * * * get ‘Don’t .” attempting As deceased was out Norwood shot him. upholding charging upon the trial action of court in facts, upon under the above didwé so the conclusion that the evidence was sufficient to warrant find- ing by (a) Norwood’s act caused deceased to reach gun, (b) transpiring that all the facts time of shooting prior thereto were authorize the sufficient to jury to find that what Norwood did and said was calculated to gun, (c) cause the deceased to reach for his that Norwood intended, by acts, provoke those an attack as an excuse for killing the deceased. facts, especially
Let us examine the instant where we find comparable similar or fact situations: animosity ill-feeling The first evidence of (the deceased) of the toward his father was when (de- prior killing, about a month told uncle brother) daddy messing that “his ceased’s into his busi- “ ness,” said, Tom, going am and he further I to kill ‘Uncle ” messing my quit old if he don’t man business.’ So, here, case, as in the accused evi- Norwood we find the dencing' аgainst animosity deceased. day killing
theOn we find in his car in front engaging- of deceased’s home and there in a (appellant’s) wife. The deceased secured shovel and went to away her rescue. took shovel him there- from upon house, forced the deceased toward the shoved him the door, front stay him to told in the house. Deceаsed secured pistol, out, up.” came and ordered to “back A similar situation is shown case in the meeting at the parties ranch all where were armed and which up telling ” broke with Norwood’s uncle of the deceased that *8 “ “ ” again.’ ‘he would see him later’ ‘we will meet significant There is in the instant case fact not in the Nor- case, wood and that appellant is the which had with presence his wife in the of the deceased. part Was that appellant attack on the of the done with the causing
intent of is, deceased to do what he did—that appellant’s rescue of wife? If believed, should have so then such was an element entering question provoking difficulty. into the difficulty, After that wife, away with his drove shortly shotgun. thereafter approached returned with a As he jumped the house shotgun he from the car with the in his hand and, crouching car, began after down walking down driveway deceased, seeing toward the back of the house. The happening, what was pistol fired a shot from the some —which of the witnesses said in the direction of an outhouse and not in the direction of heard, Several shots were among shotgun. which was one from was next seen walking driveway carring down body almost lifeless his father.
Here, again, comparable we have facts to those in the Nor- is, wood case—that that returns the home of shotgun, gets the deceased armed with a out of the car with the shоtgun, crouches down and advances toward the house, and, begins of the firing back after the pistol, deceased shotgun. shoots him with the evaluating kept mind that evidence must be jury, which the is whether there discretion, facts from conclude exercise of their authorized would be provoke into the deceased
showed that intended to carrying dоing might out pretext for some act as a use design deceased —and unlawful was to kill the —which reasonably calculated the acts of the on the deceased were to cause the deceased attack him. significant that it was is show
It also to note the facts attack, at the time of the deceased the first who made both pеllant’s difficulty also when wife auto- out returned the home shotgun with the in his hand. mobile present necessary Thus is element of first that the deceased made the attack. is —which authority that, under are constrained to conclude facts, trial applied to the instant of court was warranted in giving diffi- culty. rehearing over-
Accordingly, motion ruled. *9 Perales
Jesus State 29,589. February 26, No. 1958. Henley, Antonio, Pat
Theo. San