The appellant was indicted in the District Court of Cooke County for the murder of Jesse Jordan. He was on trial convicted of the offense of manslaughter and his punishment assessed at confinement in the State penitentiary for the period of two years and six months.
There are substantially only two questions presented on the appeal in respect to both of which we have been aided by able briefs both by counsel for appellant and for the State. The following condensed statement taken from the brief of the appellant will be sufficient to illustrate the issues and questions involved in the appeal: The appellant was a youth less than 21 years of age. The deceаsed was a young man with a family living as a tenant on the farm of appellant’s father. About 4 or 5 o’clock in the afternoon of the killing, appellant went to the house of the deceased. He carried with him a bottle of whisky and a pistol. The wife of the deceased was away from home. The parties soon got to drinking and during the time appellant fired off his pistol. While at deceased’s home, the testimony is, that appellant became very much intoxicated; he and deceased got into a scuffle and deceased, who seems to have been the larger man, got appellant down but did not injure him and made him promise to go home. In some way, during the scuffle appеllant got both his dress coat and overcoat pulled off and also lost his hat. About dark the deceased’s brother, who had come upon the scene, attempted to take appellant over to another brother’s house near by in order, as he says, to keep down trouble between the parties. Shortly after leaving decеased’s house, appellant threw a stick at deceased but did not hit him. Appellant followed deceased and when about a hundred yards from the house of his brother, appellant waving his clenched hand above his head said: “Bun up against this,” holding up his hand. Some of the parties testify they thought appel *418 lant had a club in his hand. Deceased's brother, turned him loose and he and appellant ran together and deceased.got appellant down. His brother pulled him off of appellant and thought at the time that deceased had cut appellant. It was found, however, that appellant had cut deceased on the neck, the cut being rather shallow but deep enough at one place to cut the jugular vein. Appellant managed to get home but seems to have been rather too drunk to have given a very intelligent account of what had happened; had blood all over him, his clothes were badly torn and he had a slight cut across the hand. The testimony of appellant given on a former trial wаs offered by the State in evidence, in which appellant testified that he was too drunk to recollect what happened. His testimony discloses, however, that- he did remember going to deceased’s house and that they got to drinking. He remembered, too, that deceased had him down and, as he says, was beating him over the head. His testimony tended to show that he was at the time of the killing, or soon thereafter, in a decided state of intoxication.
1. The first complaint and assignment of error made is that the court erred in the 19th paragraph of this charge to the jury in respect to the issue of provoking a difficulty. That paragraph of the court’s charge is as follows: “If you find that the defеndant killed Jesse Jordan by cutting him with a knife, yet if you further find that just before such cutting the defendant, by words or actions or by both, calculated to do so, provoked said Jordan to attack him, in order to have a pretext to kill said Jordan or inflict upon him a serious bodily injury, and if in consequence thereof he killed said Jordan, then the defendant cannot justify suсh killing on the ground of self-defense, but it would be murder, although you should find that it became necessary for defendant to kill said Jorden in order to save his own life.
But if you find that defendant provoked such difficulty in order to have a pretext to inflict upon said Jordan some unlawful injury, but not for the. purpose of killing him or inflicting upon him a serious bodily injury, then he would not be justified in said killing, although it may have been necessary for him to do the killing in order to protect his own life, but in that event he would be guilty of manslaughter.
If you find that the defendant, by words or acts or both did provoke said Jordan to attack him, and that such words or acts or both were reasonably calculated to and did provoke said Jordan to attack him, and that in cоnsequence thereof defendant killed said Jordan, then the defendant can not justify such killing on the ground of self-defense, but he would be guilty of manslaughter, although you may find that, in fact, he did not intend to provoke said Jordan to make an attack upon him.” To correct the supposed error in the last paragraph of the court’s charge quoted above, the following special instruction was requested: “No mere words tljat may have been used by defendant prior , to the difficulty which resulted in the death of deceased would justify deceased in attacking defendant unless such words upon the part of defendant were reasonably calculated and intended by defendant to pro-
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daсe in the mind of deceased a reasonable fear of injury, or to provoke the deceased into attacking defendant. And you are therefore instructed if defendant killed the deceased while defending himself from attack by the deceased, then you will find defendant not guilty, even though deceased was provoked by words used by defendant at the time unless defendant used them with the, intent stated above.” No complaint is made as to the first two clauses, or paragraphs of the court’s charge quoted above. It is, however, contended that it cannot be the law that an intentional and an unintentional act amounts to the same grade of crime and calls for the same character of punishment. Appellant’s contention is that it is beyond reason for the court to tell the jury in one clause of an instruction that if the defendant intentionally provoked the difficulty for the purpose of having a difficulty with the defendant (though not to kill him or inflict serious bodily harm on him) that it would be manslaughter if he killed his adversary, and in the next clause tеll them that if by acts or words, appellant provoked the difficulty without intending to provoke it, and without any intention of having a difficulty with the deceased, and that deceased attacked him and he killed him in self-defense in repelling the attack, then such killing would also be manslaughter. These two propositions, it is clear, were inconsistent and are illоgical and that the latter is not the law. We think, in substance, that the contention and claim of the appellant must be sustained. It is not to be denied that there is some uncertainty if not confusion, in the books in respect to the doctrine of provoking a difficulty. It is undoubtedly the law of this State that if one provokes a difficulty in order to have a pretext to kill an adversary or inflict upon him serious bodily injury he can not justify such killing on the ground of self-defense, although it may subsequently be necessary for him to kill his adversary in order to save his own life. It is the law, too, that if one provokes a difficulty intentionally in order to have a pretext to inflict some unlawful injury upon him, but not for the purpose of killing him, or inflicting upon him somе serious bodily injury, he can not thereafter justify such killing on the ground of self-defense, but that offense will not be murder but will ordinarily be manslaughter. Where,' however, with no intention of provoking a difficulty to kill or do other unlawful violence, but it is found that the acts and conduct of an appellant, though not intended by him so to do, had the effect of inducing his adversary to assаult him, it can not be held that he thereby loses his right of self-defense, or that such right is in any respect impaired. This doctrine seems to be fully recognized and to have been expressly decided in the case of Franklin v. State,
2. The next complaint of the court’s charge is that the court erred in the 20th paragraph of his charge to the jury wherein the jury were instructed as follows: “You are charged that intoxication produced by the voluntary recent use of ardent spirits constitutes no excuse for the commission of crime. However, in a case where the defendant is accused of murder, as in the case before you, you may, if you find that defendant killed Jess Jordan, tаke into consideration the mental condition of the defendant for the purpose of determining the degree of murder, if you should find Mm guilty of murder.” Article 41 of the Penal Code is as follows: “Neither intoxication nor temporary insanity of mind, produced by the voluntary recent use of ardent spirits, shall constitute any excuse in this State for the commission of сrime, nor shall intoxication mitigate either the degree or the penalty of crime, but evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant in any criminal prosecution in mitigation of the penalty attached to the offense for which he is being tried, and in case of murder the purpose оf determining the degree of mur
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der of which the defendant, may be found guilty. It shall be the duty of the several district and county judges of this State, in any criminal prosecution pending before them where temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was brought about by the immoderate use of intoxicating liquors, to charge the jury in accordance with the provisions of this article.” It has been uniformly held since the adoption of this statute that intoxication which does not amount to or produce temporary insanity is not admissible in evidence even for the purpose of determining the degree of murder. Clore v. State, 26 Texas Crim. App., 624; Kelly v. State, 31 Texas Crim Rep., 216; Gonzales v. State,
For the error of the court above noted, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.
Brooks, Judge, absent.