Sprinkle v. StateSprinkle v. State
- Reporters:
- , ,
- Before:
- Henderson
Appellant,was convicted of an assault with intent to murder, and his punishment fixed at confinement in the penitentiary for а term of five years; hence this appeal.
Appellant insists that the court’s charge on self-defense was tоo restrictive, in that it authorizes a defense only against an unlawful and violent attack made on appellаnt by the prosecutor. The charge appears to be susceptible to said criticism. Of course, appellant had a right to defend himself against an assault less than a violent attack. *225 He had a right to defend himself against аny unlawful assault. However, this charge was given in the general charge with reference to appellant’s. right of sеlf-defense and might not of itself, in connection with other portions of the charge, authorize a reversal.
Apрellant also complains of a charge on self-defense, in that the same was limited by the charge .on provoking the difficulty: the contention being that said charge on provoking the difficulty was so intimately blended with the charge on self-defense as to impair appellant’s right of self-defense; and that there was nothing in the case authorizing such a charge on provoking the difficulty; and that the charge itself as given was erroneous. The charge complained of is directly connected with the charge on self-defense. We have held a number of times, if appеllant is entitled to a charge on self-defense, he is entitled to a charge free and untrammeled from a limitation directly connected.and blended with a charge on provoking a difficulty. Drake v. State, 45 Texas Crim. Rep., 273, 8 Texas Ct. Rep., 645; Vann v. State, 45 Texas Crim. Rep., 434, 8 Texas Ct. Rep., 249.
It further appears thаt said charge on provoking the difficulty is based entirely on an act of appellant, and this act is singled out of the testimony as being a near approach by appellant to prosecutor against his protestatiоn. We believe that one may provoke a difficulty by acts alone, but this act or conduct should clearly indicаte an intention to provoke a difficulty; and that the same was calculated under the circumstances to рrovoke a difficulty. We are inclined to doubt, if the act here singled out, was of such a character. It seems from the testimony that there was some ill feeling between the parties, and when appellant met prosecutоr, the testimony, both for the State and the defendant, suggests that he was insistent on prosecutor going with him to a certain party named, in order to explain what appellant insists prosecutor had told said party in regard to himself. It is not claimed by the .State that appellant made any assault on prosecutor, save that he approached him and insisted on his going with him to said party. This prosecutor declined to do, and told appellant not to cоme nearer to him; that he understood he had threatened to cut him with a knife. Thereupon prosecutor struck appellant and the fight began. Subsequently the cutting was done. This would seem to be more in the nature of a casual difficulty than a provocation made by appellant with intent to bring on the difficulty. At least it was of such a charactеr, in our opinion, that a charge on provoking the difficulty was not authorized. Wilson v. State, 46 Texas Crim. Rep., 523, 10 Texas Ct. Rep., 709. Moreover, the charge itself fails to predicate the provocation on the intent of appellant.
The chаrge complained of is in these words: “Applying these rules of self-defense to the case before you, if you bеlieve from the evidnce that the defendant was struck by Wilkerson, and the blow followed up by other blows with the fist; and that defendant cut or stabbed Wilkerson with a knife to protect himself from such assault, thus being *226 committed upon him by Wilkerson, then such cutting wоuld be justified upon the law of self-defense, and you would acquit the defendant; unless you find that the defendant has deprived himself of the right of self-defense by having provoked the difficulty with Wilkerson, with the apparent intention of killing Wilkerson, or doing him some serious bodily harm; and in this connection you are instructed that if the parties, Wilkerson and defendant, met on the sidеwalk and Wilkerson asked defendant not to approach nearer him, indicating to defendant that he, Wilkerson, was apprehensive defendant would assault him with a knife, and defendant, notwithstanding such request of Wilkerson, persisted in cоming nearer to Wilkerson, in the manner or under circumstances such as were reasonably calculated to induсe the belief and apprehension on Wilkerson‘s part that defendant designed and was preparing to cut Wilkеrson with a knife, and if defendant persisted in thus approaching Wilkerson, after being thus informed of Wilkerson‘s apprehension, and Wilkerson under these circumstances struck defendant, the defendant would be responsible for the alterсation and guilty of having provoked the same within the meaning of the law.” It occurs to us that this charge singled out a fact that was of an ambiguous character, to say the least of it, and predicated the provocation upon this fact, and was a charge upon the weight of the testimony. Moreover, the charge leaves out the idea that appellant did what he did, as to approaching prosecutor, with the intent to provoke the diffiсulty, and predicate the provocation upon how the prosecutor may have viewed his apprоaches. It is a cardinal principle with reference to provoking the difficulty that a party charged with such рrovocation must use the language or do the act for the purpose or with the intent of provoking the difficulty. We believe the court was in error in giving this charge at all, and certainly in error with reference to the form and contents of the charge.
The judgment is reversed and the cause remanded.
Reversed and remanded.