author: PBENDEBGAST, J.

text:
    ROGERS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    Rehearing Denied June 18, 1913.)
    1. CRIMINAL Law (§ 614) — Discretion of Trial Court — Denial of Continuance.
    Under the statutes (White’s Code, Cr. Proc. § 647) a second application for a continuance is in the sound discretion of the court, and after trial is to be considered in the light of the trial, and it must not only appear that the evidence sought was material and probably true, but that a different result would probably be produced. An exception to the overruling of a second application for a continuance as qualified by the trial judge showed that one of the witnesses sought had been present at two former trials of the case, but had not testified; that the affliction of another witness must have been known to defendant and his counsel; that the testimony would be merely cumulative, non-expert testimony as to the defendant’s sanity. Sold, that the refusal of a continuance was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dee. Dig. § 614.]
    2. Criminal Law (§ 516) — Evidence—Concession— Statement Before Grand Jury— “Written Confession.”
    Testimony before the grand jury by defendant before he was under arrest, and when he had no information that he would be arrested, which was reduced to writing and sworn to, was not a written confession by defendant under arrest within the statute relating thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1139-1145; Dec. Dig. § 516.]
    3. Criminal Law (§, 452) — Nonexpert Testimony-Sanity of Accused.
    Nonexpert witnesses shown to have had knowledge and observation of defendant for considerable time and to have known of his dealings were properly permitted to testify that they saw nothing out of the ordinary with him, and that he acted rationally; such testimony being only a shorthand rendition of the facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent.Dig. §§ 1053-1055; Dec.Dig. § 452.]
    4. Criminal Law (§ 957) — New Trial — PROCEEDINGS FOR NEW TRIAL — AFFIDAVIT OF Juror.
    A juror cannot impeach his verdict by affidavit to the effect that he would not have agreed to the verdict of guilty, unless the other jurors had agreed to sign a recommendation for defendant’s pardon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. § 957.]
    5. Criminal Law (§ 957) — New Trial — Misconduct of Jury.
    An affidavit of a juror that he would not have agreed to a verdict of guilty unless the other jurors had agreed to sign a recommendation for defendant’s pardon was insufficient to authorize or require a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. § 957.]
    6. Criminal Law (§ 822) — Trial—Taking Instructions as a Whole.
    The charge of the court must be taken as a whole.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. §, 822.]
    7. Criminal Law (§ 822) — Instructions— Insanity.
    In a prosecution for arson, defended on the ground of insanity, the charge of the court defined arson, defined a building, and the meaning of the term “willful,” charged that, if defendant willfully burned the gin, he would be guilty as charged; that no acts done by an insane person were punishable as a crime, and on the presumption of innocence and burden of proof. Held that, taken as a whole, the charge was not objectionable as authorizing a conviction, though the defendant was insane, and did not know that he was doing an unlawful act.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    8. Criminal Law (§ 1038) — Appeal — Instructions — Bequest for Additional Charges — Necessity.
    Defendant complaining of the charges given should have requested _ additional charges; and, not having done so, his criticism presented no reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    John Bogers was convicted of arson, and he appeals.
    Affirmed.
    T. B. Hears, of Gatesville, and Williams & Williams, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PBENDEBGAST, J.

Appellant was convicted of arson, and his penalty fixed at the lowest prescribed by law, five years in the penitentiary.

For a few years before August 27, 1911, F. B. Lam and W. L. Bogers were equal partners in two gins. They both lived, and said gins were situated, in the town of Ogles-by, Coryell county, Tex. The gins were 150 yards apart. It seems that Lam ran one of the gins and Bogers the other. The mother of Lam was the sister of Bogers. Lam’s father was a brother of the wife of W. L. Bogers. Appellant was 19 years of age in January, 1911. His home was then and all his life had been at his father’s. His parents moved to Oglesby from a few miles in the country near thereto some four years before August, 1911, and had lived in Oglesby four years or more continuously before said last date. Some three weeks before August 27, 1911, Lam and Bogers had fallen out about their said partnership business. The state of feeling between them was very bitter each towards the other. It all grew out of and was connected with their gin business. On Sunday night August 27, 1911, the said gin-house which was run by said Lam was burned about 11 o’clock at night. It was worth from $6,000 to $8,000. The grand jury of Coryell county did not convene after said burning until January, 1912. On January 12, 1912, the grand jury began an investigation of said burning, and had a large number of witnesses summoned to appear at that time, and they did appear at that time for that purpose.

Appellant was the second witness, it seems, the grand jury had before it on that subject. He was duly sworn, and testified as any other witness. He at first denied knowing anything about who burned the gin, or having anything to do with burning it, and denied being in the town of Oglesby at a certain well therein, and seeing certain persons thereabouts, and denied several other facts, afterwards sworn to in his written statement. The county attorney or some of the grand jurors then told him they in effect knew he was testifying falsely, but, if he would testify truthfully, they would forgive him, and not prosecute him for false swearing. Thereupon he admitted he had not been telling the truth, but would then do so. Then testified fully. His testimony was reduced to writing, and he signed and swore to it, in addition to having been sworn and testified orally. His written sworn statement is as follows: “I burned the gin myself on Sunday night after church and before midnight. I burned it by pouring a gallon can of coal oil on the floor and under the second gin stand from the east end of the ginhouse and by throwing a lighted match on said oil. After the oil began to burn, I threw the can out at the window under the suction shed, and ran out through the south door straight to my horse and buggy in front of the M. E. church in Oglesby, where I got in the buggy and drove straight to Yirge Lawrence’s place as fast as the horse could trot. After putting up my horse and buggy, I went to the house and woke up Virge Lawrence, and told him the gin was on fire. (We could see the fire from his house, which was about three miles westward direction from Ogles-by.) Yirge and his wife, my sister, got up and dressed and went to the fire. After they left, I hitched up again and went to the fire also. The ginhouse had fallen in when I got there. I got the can full of oil at Virge Lawrence’s on the Saturday before the burning and took it to Oglesby, and hid it Saturday evening between the old livery stable and the little house just east. After church Sunday night following I changed my Sunday clothes at my buggy for a blue jumper and duck pants, and went down in front of the Stock-berger store and to the public well of Ogles-by, where I saw Leonard Stockberger, Ed Mooney, Cecil and Wood Graham, and Bob Stockberger. All that was there said between us was that Leonard asked me what I was doing there, and I replied that I was waiting for ‘Fatty Reid,’ meaning Sam Reid. As soon as all of these boys had gotten some distance away, I got the above-mentioned can from the place where I hid it, went straight to the gin that was burned, and set the fire that burned the gin as stated above. I decided on the Friday before that I would burn the gin on Sunday night. After I hid the can as above stated on Saturday evening, X went through the gin to choose a place to set it on fire. After church the Sunday night of the fire and before I changed my clothes I told George Isbell, Jr., Reynold Bannister, and Floyd Campbell after they promised they would not tell that I was going to burn the gin. One of them told me it would be a dangerous thing to do. On the Sunday after the gin was burned X told the same boys that I had burned the gin. They were all together at the time. I burned the gin because I was mad at Frank Lam, the manager, because he would not pay me what I claimed he owed me for work I had done. This was the only reason. Nobody told me to burn the gin and I had talked with nobody about it except the three above named boys, nor have I since told anybody that I did it except the same three boys. I alone am to blame for the burning of the gin. I make 'all the above statements freely and voluntarily because the same is true, and with no promise on the part of any officer or any man except that of the district attorney that if I would tell the whole truth and nothing but the truth that he would recommend leniency. I understand this can be used in evidence against me. Johnnie Rogers.” This sworn testimony was introduced on the trial of this cause. In addition to and independent of it, the state proved substantially and fully the same things by numerous witnesses. Some three or four witnesses testified that shortly before appellant burned this gin he told them that he was going to do so, and fixed said Sunday night as the time. He showed to one or more of the witnesses a can of oil that he had procured for that purpose. After the fire, he admitted to three or four witnesses that he had burned said gin, and when they, together with himself, were summoned before the grand jury, and before that too, he urged them not to give him away. In fact, the testimony without doubt clearly established that appellant burned the gin without reference to his own written testimony. His main or sole defense was insanity. The record in this ease, as well as the statement of facts, is voluminous. We think it altogether unnecessary to further detail the testimony.

Appellant’s first bill of exception is to the action of the court in overruling his motion for a continuance. It was sought on account of the absence of appellant’s mother, who lived in Coryell county, but who was temporarily absent-in lyaco, McLennan county, and of his sister, Mrs. Amiott, who was a resident and lived in Waco, McLennan county. There is no question but that this was appellant’s second application for a continuance. He first continued the case at the January term of the Coryell county district court. It appears that at that term both sides announced ready for trial. After proceeding with the trial for some time, a child of one of the jurors became very sick, and in accordance with the law the court permitted that juror, in company with a deputy •sheriff, to go to his home in the country and see the child. After waiting a day or two, it became evident that the juror’s child was too ill for him to leave and would probably ■die, and perhaps did. Appellant at the time he announced ready, when the case was call-ad, stated that one of his material witnesses was absent, and that, if this witness did not ■arrive in time to testify, he would withdraw his announcement of ready, and would then make application to continue on that ac•count. It had been some two or three days ■after this announcement and the proceeding to trial when this witness had still not arrived, and in the dilemma the ease was in, ■and in order to avoid jeopardy, appellant then, with the consent of the state and court, withdrew his announcement of ready, and the case was continued on his application •because of the absence of said witness. This presented some equitable matter for the •court to consider in the second application, but it, as stated above, was unquestionably ■a second application when appellant sought ■a continuance on account of the absence of his mother and sister. The court in approving appellant’s bill complaining of the action of the court in refusing his continuance ■qualified it by stating as follows: “(1) This was the defend'ant’s second application for a •continuance. (2) As to Mrs. Rogers, defendant’s mother, I have to say that this was the third trial of this case. This had ■been tried for lunacy since indictment on -complaint made by his father. At all previous trials including the lunacy trial, Mrs. Rogers, though present, did not testify as a witness. In view of such facts diligence would have required the defendant to take her depositions. (3) The doctor’s certificate shows that Mrs. Amiott’s affliction was also •of some years standing, and must therefore hav*e been known to the defendant and his •counsel and clearly suggested the advisability of taking her depositions. While she had testified at the former trials of the case, her ■condition as stated by the doctor was no worse on the morning he visited her than it ■had been during the years she had been suffering from the infirmity. If it was, the doctor does not say so. He says ‘any undue exercise or excitement will aggravate her condition.’ It occurs to the court that she could have appeared and testified without ‘undue’ excitement or exercise. (4) Again, the testimony was merely cumulative of that of her father, sister, and brothers-in-law who as nonexperts gave their opinion as to the defendant’s sanity. She might have stated other and different reasons for such opinion in aid of and ancillary to her opinion. For this reason, I did not think the application good and for the other reasons •above stated.”

At most, the evidence of Mrs. Rogers and Mrs. Amiott could have been but cumulative evidence. Judge White in his Annotated C. O. P. § 1149, subd. 6, says: “Evidence is cumulative which only multiplies witnesses as to one or more facts already investigated, or only adds other circumstances of the same general character.” We have considered the testimony of appellant’s father, and his other two sisters, who testified, and we think it clear that the testimony of Mrs. R'ogers and Mrs. Amiott would have been merely cumulative. Under the statute a second application for a continuance is not granted as a matter of right, but is in the sound discretion of the court Also, under the statute, after the trial, it is again to be considered by him in the light of the trial, and it must not only appear that the evidence was relevant, material, and probably true, but it must also appear that a different result would be probably produced. Section 647, White’s C. C. P. In our opinion the bill, as qualified by the judge, does not show that the court committed any reversible error in refusing the continuance and in refusing a new trial on that ground.

Another bill by appellant complains that the court erred in admitting the sworn written testimony of appellant before the jury, copied above. All of his objections are based on the theory that the said written statement or evidence was a confession of defendant after arrest under our statute. The court qualified appellant’s bill on this subject with this explanation: “At the time defendant testified before the grand jury he was not under arrest and had no intimation or information that he would be arrested. He testified simply as any other witness. I held that under such circumstances the statute as to confessions of defendants while in custody and under arrest did not apply.” We have carefully considered this question, and it is our opinion that the court’s action and treatment of said testimony was correct. It was not a written confession as provided by our statute. Hence the statute on that subject is inapplicable. So are all the decisions cited by appellant in his brief. Bailtey v. State, 144 S. W. 1000, citing Thomas v. State, 35 Tex. Cr. R. 178, 32 S. W. 771; Jones v. State, 33 Tex. Cr. R. 7, 23 S. W. 793; Paris v. State, 35 Tex. Cr. R. 82, 31 S. W. 855; Wisdom v. State, 42 Tex. Cr. R. 579, 61 S. W. 926; Grimsinger v. State, 44 Tex. Cr. R. 26, 69 S. W. 583. See, also, Pressley v. State, 141 S. W. 215; Harrison v. State, 153 S. W. 143; Mackey v. State, 151 S. W. 803, 804.

As stated above, appellant introduced, among other witnesses, his father, two sisters several years older than hé, and his brothers-in-law, their husbands, and several other witnesses who were persons living in the same community and had lived there for many years, some or all of whom had known him all of his life and had seen him, observed him, and had been about him just like persons living in the same community or little town will see, be about, and communicate witli others. The trend of his •whole evidence was to show that appellant was almost an idiot; that he could not learn at school, did not know how to add, ■subtract, and multiply, etc., and could not be taught it, did not know how to play .games, and could not be taught to play them, and many individual acts showing a lack of mental capacity and development. He also had one doctor who testified, not only from his personal observation, but from hypothetical questions, in substance, that in ■his opinion he was not sane, did not know right from wrong, and was not of‘sufficient : mental capacity to understand right and ■wrong and comprehend what he was doing, ■but that he might be mistaken on these .points. The state in rebuttal of this testimony introduced many of his kinsmen and women on the Lam side of the house, who had known him all of his life. They lived in the same community or town, saw him from time to time, day to day, year to year, just like intimate kinsfolk living in the same ■community see, be with, and observe one another. In addition to this, the state introduced many witnesses, the merchants, bankers, other business men, and a considerable number of appellant’s associates about his own age, or just a little older or just -a little younger, who ran with him for years ■ and from day to day and from time to time, and they all after telling of their observations, and experiences with him, hearing him talk, seeing and knowing of his working in various capacities, many of his trades and purchases, his dealings with the bank, etc., testified in effect that they saw nothing in his -acts, sayings, and doings to make them believe he did not know right from wrong, etc. The character of the testimony introduced by the state was substantially that introduced by the appellant and in rebuttal thereof. Some of these witnesses for the state were permitted, after detailing their dealings with, observation, and knowledge of and hearing and seeing appellant from day to ■day, week to week and year to year, that in their opinion he had the intelligence of an ■average young man of his age; that he knew .right from wrong, and knew it was wrong to burn said gin, and such like expressions •of opinion.

Appellant took various bills of exception to the introduction of such testimony by the state. The court permitted the testimony ■over appellant’s objections, stating as an explanation in allowing the bills: “In the admission of testimony in this case I attempted to follow the Jordan Case in 141 S. W. 786. In view of that decision and cases there cited, I feel that testimony of a witness that ‘he saw nothing out of the ordinary with the defendant’ or that ‘he acted rationally,’ or that ‘he saw nothing to indicate insanity on the part of accused,’ is only a shorthand rendition of the facts. I think that the state could prove as a fact, as was done by the above witness who had had dealings with the defendant, that he saw nothing out of the ordinary with him in the trade and observed no evidence of insanity. I cannot imagine how sanity could be otherwise proven.” In our opinion, all of this testimony was admissible, and the court properly followed the said decision in the Jordan Case, and many other cases of this court along the same line. We think the testimony admitted comes clearly within said decisions, and was the best possible evidence that could be introduced on the subject of sanity or insanity of the appellant. It is unnecessary to cite other authorities or to take up and discuss the evidence and the various bills on the subject. Appellant has another bill complaining of the misconduct of the jury in receiving other evidence while they were considering their verdict. The court had all of the jurors sworn and they testified. In addition to all 12 of them testifying, he heard the affidavit of the one juror whose affidavit was made the basis of said' motion for new trial and the bills of exception, and also the affidavit of the other 11 on the same matter. Taking it as a whole, we think it clearly shows that the jury did not receive and did not consider any evidence other than that properly admitted before them on the trial.

The one juror upon whose affidavit said ground of the motion was based swore and testified in substance that he would not have agreed to the verdict of guilty, unless the other 11 jurors had agreed to sign a recommendation for appellant’s pardon, which they agreed to do. It has uniformly and many times been held by this court that no juror should be permitted to impeach his verdict on this account, and that such ground is insufficient to authorize or require a new trial. Montgomery v. State, 13 Tex. App. 74; Henry v. State, 43 S. W. 340; Bearden v. State, 47 Tex. Cr. R. 271, 83 S. W. 808; Bacon v. State, 61 Tex. Cr. R. 210, 134 S. W. 690.

Another ground of appellant’s complaint is to the charge of the court to some paragraphs and one claimed omission therein. In order to discuss these, we will quote the charge in full, numbering the different paragraphs. After correctly stating the charge against appellant by the indictment and his plea of not guilty, the charge is:

(1) “Arson is the willful burning of a house.”

(2) “A house is any building, edifice, or structure inclosed with walls and covered, whatever be the materials used for the building.”

(3) “The meaning of the term willful as used in the definition of this offense is that the act must be committed with an evil intent, or with legal malice, or without reasonable ground for believing the act to be lawful.”

(4) “Now if you believe from the evidence beyond a reasonable doubt that on or about the 27th day of August, A. D. 1911, in Coryell county, Tex., the defendant did then and there willfully set fire to and burn that certain house mentioned in the indictment in this case, and that the said house was then and there the property of Lam & Rogers, a firm composed of E. B. Lam and W. L. Rogers, as alleged in the indictment,' you will find the defendant guilty of arson as charged in the indictment, and assess his punishment at confinement in the penitentiary for not less than 5 nor more than 20 years.”

(5) “Among other defenses made in this case is that of insanity. Xou are charged that only a person of sound memory and discretion can be held punishable for a crime, and that no act done in a state of insanity can be punishable as an offense.”

(6) “Every man is presumed to be sane until the contrary appears to the jury trying him. He is presumed to entertain, until this appears, a sufficient degree of reason to be 'responsible for his acts; and to establish a defense on the ground of insanity it must be proved that at the time of committing the act the party accused was laboring under such defect of reason from disease of mind as not to know the nature or quality of the act he was doing, or if he did know that he did not know he was doing wrong — that is, that he did not know the difference between right and wrong as to the particular act charged against him.”

(7) “The insanity must have existed at the very time of the commission of the offense, and the mind must have been so dethroned of reason as to deprive the person accused of a knowledge of the right and wrong as to the particular act done.”

(8) “You are to determine from the evidence in this case the matter of insanity, it being a question of fact, controlled, as far as the law is concerned, by the instructions given you.”

(9) “In case you find from the evidence that the defendant was insane at the time of the commission of the act, if he committed it as alleged in the indictment, and you acquit him, under the instructions heretofore given you, you will state in your verdict that you have acquitted the defendant on the ground of insanity.”

(10) “The defendant in a criminal ease is presumed to be innocent until his guilt is established by legal, competent evidence beyond a reasonable doubt, and in this case, if you have a reasonable doubt of the defendant’s guilt, you will acquit him, and say by your verdict not guilty.”

(11) “You, gentlemen of the jury, are the exclusive judges of the credibility' of the witnesses, of the weight to be given to the testimony, and of the facts proven, but you are bound to receive the law from the court as given you in this charge and be governed thereby.”

It is elementary that the charge of the court must be taken as a whole. Of course, all the law applicable to the case cannot be given in one paragraph, and it takes several to give the charge in full. Appellant complains of the fourth paragraph, in that it ought, at the end, to have added thereto this: “Unless you find the defendant not guilty under other instructions herein given you.” He complains of the fifth paragraph, claiming that it virtually instructed the jury that an insane person can commit crime, though he is not amenable to the law. He complains of the ninth paragraph, because the court nowhere in the charge prior to this language instructed the jury how or under what circumstances they could acquit defendant, and claims that the charge should have stated to the jury in plain and unmistakable language that, if they found defendant insane or that he was of unsound mind and unable to distinguish right from wrong, to acquit him. We regard all these criticisms as rather hypercritical. Taking the charge as a whole, we think, without question, the jury therefrom could not have convicted the appellant, in the first place, unless he willfully burned the gin, and that he was sane when he did so and knew that he was doing an unlawful act. We think that it does not instruct the jury that he could commit a crime for which he was punishable while he was insane. And, taking it as a whole, we think that the jury could not have understood otherwise than that if he was insane when he committed the act that they should acquit him on that ground.

Appellant requested no special charge, did not attempt thereby or otherwise during the trial to get a fuller and more pertinent charge. If the charges complained of should have been as appellant now contends, “it was his duty to request additional charges,” and, not having done so, his criticisms present no reversible error. Dozier v. State, 62 Tex. Cr. R. 262, 187 S. W. 679, and authorities therein cited.

Notwithstanding this is a voluminous record, both the record proper and the statement of facts, we have carefully considered the whole of it, and in our opinion it establishes clearly, not only the guilt of the appellant, but that he was sane and not insane when he committed the act.

• The judgment will be affirmed.


source: Caselaw Access Project

author: HARPER, J. DAVIDSON, P. J.

license: Public Domain

text:
    ROGERS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    1. Homicide (§ 300) — Assault to Murder— Provoking Difficulty — Intent to Kill.
    In instructing the jury on the law of provoking a difficulty, it was not necessary to state the law applicable, if the jury should find that defendant provoked the quarrel without intent to kill, where, following a difficulty with another, defendant had procured a pistol and gone to the other’s house, and a shooting affray had immediately followed, since one is presumed to have intended such consequences of his acts as are their necessary or probable result.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    2. Homicide (§ 310) — Assault to Murder— Degree of Crime if Death Ensued.
    Where following a quarrel with another, defendant procured a pistol, and went to the other’s house, whereupon both began shooting, there being no evidence that defendant went to adjust the difficulty, an instruction that, if the crime would have been manslaughter had death occurred, defendant could not be found guilty of assault to murder was uncalled for by the evidence.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 667-661; Dec. Dig. | 310.]
    3. Homicide (§ 310) — Assault to Murder-Aggravated Assault.
    In a prosecution for assault to murder, it was not error to refuse to charge the law of aggravated assault, where the evidence was that, following a quarrel with another, de-. fendant procured a pistol and went to the other’s house, and a shooting affray immediately followed, since defendant was guilty of assault to murder or no offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    4. Homicide (§ 267) — Assault to Murder-Sufficiency of Evidence.
    Evidence, in a prosecution for assault to murder, held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 643, 652; Dec. Dig. §, 257.]
    6. Homicide (§ 300) — Assault to Murder— Self-Defense — Provoking the Quarrel.
    In a prosecution for assault to murder, where, following an'altercation, defendant procured a pistol and went to the other’s house, where a shooting affray, in which both engaged, immediately followed, it was not error to instruct that if defendant provoked the quarrel he could not avail himself of the plea of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Jasper County; W. R. Powell, Judge.
    Clifton Rogers was convicted of assault to murder, and he appeals.
    Affirmed.
    J. J. Lee, of Jasper, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of assault to murder, and his punishment assessed at two years’ confinement in the state penitentiary.

We cannot agree to the opinion of our presiding judge, and we copy here virtually the entire evidence in this case.

Arch Neyland testified:

“I know Clifton Rogers. There he is sitting over there. Clifton Rogers was shooting at me. I don’t know just how far he’ was in shooting distance of me, though — close enough to hit me. I don’t know how many times he shot at me; I suppose that he shot until he emptied his gun. The pistol he had shot- six times. This difficulty came up about gambling; we had been gambling, and I broke him. Wé were playing cards, and I won all of his money. When I won his money, he would not give it to me. I asked him for it, and he would not give it to me, and I told him he could have it, and the fuss started from there, and he told me he was not going to give it to me, and I told him it was all right; he could have it. He got up then and went out and went down to Buster Hafford’s and got a pistol, and Buster Hafford tried to take it away from him, and he would not let him have it. It was not' but a few minutes after we quit playing cards until he went home after his pistol. We had to go about as far as across the street over there — I would say something like about 30 or 40 or 50 yards. When he went out of there I went out behind him. Sam Bolder called me, and I stopped, and Buster said: ‘You go in Mitchell’s house; that boy has gone after my (his) pistol.’ I went in Mitchell’s house, and this boy came the back way and went on up to the house where I was at, and went in the house, and I went out and went across the street,, and he went across the street behind me, and I went in another house. I got a Winchester when I went in that house. I went on back to my house, and was standing out in front of the gate talking to a boy, and I looked around and he (appellant) was trying to slip up on me. As I looked around he pulled out his pistol and commenced shooting, and when he made two shots I commenced shooting at him. I think it was about 20 minutes ffom the time we were playing cards until the time the shooting commenced. The shooting took place in front of my house at the far end of the quarters.

“I could not say exactly how much money I had won from him. We were gambling in a house down there. I could not tell you who all was gambling. There were others besides myself and Clifton Rogers. I asked him for the money, and he would not give it to me. He left out ahead of me, and left me standing in there. He did not go to his boarding place at all. He went to the railroad track after he got the pistol, and come back after me. When I went up there I saw him on the railroad track. He was coming towards my house. He was on the railroad track coming back when I saw him, coming towards my house, about as far as from here to the jail from me. .He was in shooting distance of me at that time. My boarding house was close to the track. I went from the gambling hall towards the railroad track; my boarding house was right across over this way, about two blocks, and I went down this way. When I saw him coming in that direction I went in the house. Buster told me to go in the house, he was coming with his pistol, and I went in a boy’s house called J. Mitchell. I did not get a pistol in there, I went up there and got a gun from Hafford; that was after he had done run me. After I ran, I went back up towards the gambling shack. I went up there and got a gun and come on back to where I stayed. He had to come right by the gambling house, and I went on around and was talking to Horace Flint, and he was slipping up on me. It was about 20 minutes from the time he had been running me with the gun until he came back to the boarding house. He just came on behind me with the gun, and Buster was trying to take it way from him; he was following me on up with it. We were about 100 yards apart when he was following me up. I could not tell you how close he was to me when he fired the shot, but he was in shooting distance. I would say he was about 30 or 40 yards from me — just about as far as across the street. The reason he did not shoot me or make any effort to shoot me when we wer'e walking along there was because Buster had hold of him; he had hold of his arm trying to get the pistol away from him. He could not get it away from him, and he let him alone; when he turned him loose I came on to where I got the pistol. He was about as far as across the street from me at that time. He did not try to shoot me; he could not shoot me because I was in the ’house, and he was about 100 yards from the house. He did not say anything to me about stopping. ' After this fellow let him go, he did not make any effort to shoot me until he came around from across the railroad track. This gun he had was a 41; I don’t know whether it was a Colts or Smith & Wesson. Horace and Mr. Williams saw the shooting take place. I don’t know where Horace Bluit is. Clifton shot first; he shot twice, and I proceeded to crack down on him. I don’t know how many times I shot at him. I hit him in the leg twice. He run, I guess, when I shot him. I got the Winchester from Clifton Hafford. I told her her husband sent me after it. He did not tell me that I told that lie to save my life. I knew appellant would shoot me. I don’t know whether it is a fact that a 41 pistol will carry a bullet a hundred yards or not. The reason I did not go to that woman like a man and tell her that a fellow was going to shoot me, and I wanted to get their Winchester, was because she would not let me have it. I thought he was going to try to kill me. I thought my life was in danger, and still I would not tell the woman why I wanted the gun. I told her a lie to get the gun. I am not going to tell you a lie here. I tell lies sometimes. It is a fact that I am under indictment in this court for having made an assault on Clifton Rogers here with intent to kill and murder him. I don’t want to stick him so that he cannot testify against me. I don’t want to get stuck either. I don’t want to see either one of us stuck. I cannot say that I want him convicted so that he cannot testify against me and get me convicted. Ruth Williams was at her wash place when the shooting took place, right out in front of my house; I was talking to her. She could have seen, us two fellows shooting at each other; it was. open. Lewis Hafford was in the yard, the-millyard; it was near about the quarters from there. He was a little bit further than 50 yards; I could not say how far it was;-, it was a little further than 50 yards. I staged that I heard the bullet whistle by my. head. I don’t know just how close it came-to me, but pretty close. It came right along by my ear. I stated he was 40 or 50 yards-from me at the time he commenced shooting. Clifton and I were just across the street from one another. He followed me up and went in some one’s house. He stopped in a house and got a gun. I went in the house and got a gun. I don’t know which way the defendant went when I went in and got the gun. He went to my house, and there is where the shooting took place. I was not sitting on any stump at the time the shooting took place, nor when the shooting began. I had my face to the defendant when the shooting commenced; he was slipping up on. me. He' was just walking along and coming on down towards my house, and I looked around and saw him, and when I looked around and saw him he pulled out his gun and went to shooting. I did not raise my Winchester and take one or two shots at him before he shot at me; he shot first. I don’t know how many shots I fired with the Winchester.”

Buster Hafford testified:

“I know Buck Neyland and Clifton Rogers. I don’t know anything about the shooting between Buck Neyland and Clifton Rogers. I know that Clifton Rogers came to my house and got a pistol. It was a 41; I guess it was a Colts. It was my pistol. I did not give it to him or loan it to him. It was in. the trunk. I reckon that he must have-gotten it out of the trunk. As to whether I tried to take it away from Clifton Rogers, will say that I asked him for it, and he would not give it to me. I did not do anything then. He went on back up the street. I heard some shooting after that. I don’t know exactly-how many shots I heard, about 4 or 5. I did .not see any of the shooting. I was sitting on the gallery of my house when the shooting took place. This fellow did not keep my pistol very long before he did the shooting with it. I did not give him my permission to take the pistol out of my trunk. I suppose it was about an hour; it was about an hour from the time he took the pistol until he returned it. It was loaded when he took it, and unloaded when I got it back. There were six loads in it,. and was not any loads in it when T got it back. This shooting took place before 12 o’clock. I went up the street about a hundred . yards trying to get the pistol. He was not trying to shoot Buck then. I saw Clifton Rogers after he was shot; he was shot in the leg twice. Clifton told me when he went and got the pistol that he was tired of being run over, and wanted the pistol to protect himself, or words to that .effect. All of the time that Clifton and I were walking along behind Buck, and after I turned him loose, he did not make any effort to shoot Buck. I was just talking to Clifton. I don’t remember whether I had hold of him or not. I tried to take the gun away from him by asking him for it. I was not trying to take it away from him physically; I could not have taken it away from him that way.”

Lewis Hafford testified;

“I know Buck Neyland, and I know Clifton Rogers. I was in the lumber yard at Bessmay when the shooting took place. I saw the last part of it; I did not see the first part of the shooting. I heard the shooting, and I am familiar with the reports of pistols and Winchesters, and can tell the difference all right. It was about 12 o’clock. The first shot that was fired sounded like a pistol to me. There were two shots from the pistol before I heard the Winchester. I was about 300 yards from where the shooting took place. I could hear the shooting plainly. The first shot I heard sounded like a pistol shot to me. The Winchester was mine. I was familiar with the sound of the Winchester. I could not swear positive that the first shot that I heard was a pistol shot. I can swear positive that the last shot I heard was a Winchester shot. The first two shots that I heard sounded like pistol shots to me, and that is all that sounded like a pistol to me. I just heard two pistol shots, and if there were six in the pistol and all of them shot, I don’t know when they were shot. At the time I saw the shooting, I don’t know who it was, and didn’t know who it was that was doing the shooting. I could not tell who was doing it. I don’t know who had a Winchester or who had the pistol. I could not tell from where I was.”

Ruth Williams testified for defendant:

“I kno.w Clifton Rogers and Buck Neyland. I don’t know very much about the difficulty that took place between them on the 12th of last May. I was washing, and I saw Buck Neyland come up back of the fence, and he had a Winchester in his hand, and he set out there on a stump a good while. I did not say anything to him, and he did not say anything to me. After awhile I saw Clifton Rogers come out between the two houses, and stood there awhile, and it looked like he was looking over that way, and when I stood there a good little while Buck Ney-land raised up and picked the gun up and went to shooting, and they got to shooting so rapid that I run in the house. I saw Buck Neyland raise the gun up and go to shooting. Buck Neyland fired the first shot I did not hear any one else do any shooting until I heard Buck shoot, and he fired: over that way. Buck shot twice before Clifton shot. They shot pretty near together. I don’t know how many times they shot; I got scared and broke and run. I saw Clifton walk out in front, but did not see him shoot; I had my face towards Clifton. The sound I heard after Buck shot came from the direction of where Clifton was. I did not hear any shots or sounds of shots coming from the direction of where Clifton Rogers was until after I had seen Buck Neyland fire. I state that the shooting was right close together, almost at the same time, Buck just a little first. It was right close to the same time together. What attracted my attention was him coming up there with the gun, and I saw him looking away across like he was looking for something, and I went to looking to see what he was looking at. After a couple of shots were made, I broke and run. I broke and run in the house and shut the door, and stayed in there until it was all over, and that is all I know about it.”

Appellant did not testify in the case (as he had a right not to do so), and this leaves us with Buck Neyland’s version of the beginning of the trouble alone, and from it appears that the difficulty arose over a game' of cards; that appellant left and went and. armed himself with a pistol; it appears that subsequently Neyland also left the gambling house, and being informed that appellant had secured a pistol, he went and got a rifle. Neyland then went home; appellant came to or near Neyland’s home. There is no conflict in the testimony so far, but there is a conflict as to which fired the-first shot. Neyland says appellant shot at him twice before he fired; in this he is corroborated by Lewis Halford. Ruth Williams testified that appellant did come to the-home of Neyland, but says when he came in sight that Neyland fired first, when appellant returned the fire.

There are no bills of exceptions, and the first ground in the motion reads: “Because the court erred to the prejudice of this defendant in failing and refusing to instruct the jury in the charge given as to the whole law relative to provoking a difficulty, in that the court charged the law applicable in case the evidence showed that the defendant provoked the contest or difficulty with said Buck Neyland with the intent to kill him (said Neyland), but wholly failed and refused to instruct the jury as to the-law if the contest or difficulty was provoked by defendant with no intention to kill said Neyland.” By the testimony above copied-it is seen this complaint has no foundation in the evidence. If appellant provoked the-difficulty, and. the jury so found, the evidence-raised no issue that he did so with any other intent than to kill. One used a 41 caliber pistol, the other a rifle, both being deadly weapons, and article 51 of the Penal Code provides that the intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden offense, and this court has held that this presumption always obtains when the consequences of the act are the necessary, or even probable, result therefrom. McCoy v. State, 25 Tex. 33, 78 Am. Dec. 520; High v. State, 26 Tex. App. 245, 10 S. W. 238, 8 Am. St. Rep. 488; Wood v. State, 27 Tex. App. 393, 11 S. W. 449; Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679; Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361. While it is never proper to give this article in charge to the jury, yet in passing on the record this rule of law is placed in the Code for our guidance, and when one secures a deadly weapon after a difficulty, follows another to his home, the necessary and probable result is there will be trouble, and if trouble does ensue, and he uses the pistol, no intention other than to kill can be presumed or inferred from such acts, and in this record there is no suggestion that appellant had any other intent than to kill when he fired the shot.

The second ground in the motion is: “Because the court erred to the prejudice of this defendant in failing and refusing to charge the law that in case said Neyland had been killed by said defendant, and such killing had been done under conditions that would have made the homicide manslaughter and not murder, then defendant could not be found guilty of the offense charged in the indictment, but may have been guilty of some other offense.” There is no evidence that appellant went to Neyland’s home to adjust the difficulty; but he secured á pistol, went to his adversary’s home, and when they came in sight of each other, the shooting began. There is nothing in the record to suggest an adequate cause to reduce the offense to manslaughter, had death ensued.

The third ground reads: “Because the court erred to the prejudice of this defendant, in that it failed and refused to charge the law of aggravated assault, and in failing and refusing to properly instruct the jury as to the conditions under which the jury could and should find the defendant not guilty of assault with intent to murder, but should find him guilty of aggravated assault, or of an offense of a lower degree.” There is no evidence, as shown above, calling for a charge on aggravated assault. Appellant was guilty of assault to murder or no offense.

That ground in the motion complaining of the insufficiency of the evidence is without merit, as shown by the testimony herein copied, and the only other ground in the motion reads: “Because the court erred to the prejudice of the defendant in charging the law as to provoking a difficulty, for the reason that the evidence showed, if defendant had provoked a difficulty, that said difficulty was past, and that at the time the shooting took place there is no evidence that defendant in any manner provoked, or attempted to provoke, a difficulty.” It is seen this ground seeks to point out no error in the eharge on provoking the difficulty, but simply and only complains that the court erred in submitting that issue to the jury. Our decisions hold that circumstantial evidence may be cogent enough to authorize a charge on provoking the difficulty. In Tate v. State, 35 Tex. Cr. R. 235, 33 S. W. 121, this question is discussed at length, and in a case where the evidence on provoking the difficulty is weaker than in this case, this court held there was no error in submitting that issue, although the defendant testified his intention in going to decedent’s place of work was to adjust matters, but the court says from the circumstances in the case the jury was authorized to find otherwise, and the court did not err in submitting the issue. In this case appellant has an altercation with a man; goes and gets a pistol; says he is tired of being run over; proceeds to the home of the man with whom he had the altercation; and for what purpose? He is silent as to his purpose, but the facts and circumstances all point to the fact that he went there to engage in a deadly affray, at least, would raise the issue sufficiently to authorize the court to submit the issue to the jury. In section 1181 of White’s Ann. P. C., the rule is stated to be:' “Adjudicated cases hold among the slayer’s acts which abridge his right of self-defense the following: (1) Devices, by language or otherwise, to provoke the deceased to make an assault which will furnish a pretext for taking his life or inflicting serious bodily injury upon him; (2) provocation of the deceased into a quarrel causing the fatal affray; * * * (3) preconcert with deceased to fight him with deadly weapons; (4) commencing an * * * assault * * * upon the deceased; (5) going with a deadly weapon where deceased is for the purpose of provoking a difficulty, * * * and by words “or acts, making some demonstration of such purpose calculated to provoke the deceased. Cartwright v. State, 14 Tex. App. 486; Cunningham v. State, 17 Tex. App. 89; Jones v. State, 17 Tex. App. 602; Allen v. State, 24 Tex. App. 216 [6 S. W. 187]; Ball v. State, 29 Tex. App. 107 [14 S. W. 1012]; Milrainey v. State, 33 Tex. Cr. R. 577 [28 S. W. 537]; Thumm v. Statfe, 24 Tex. App. 667 [7 S. W. 236]; Meuley v. State, 26 Tex. App. 274 [9 S. W. 563, 8 Am. St. Rep. 477]; Bonnard v. State, 25 Tex. App. 173 [7 S. W. 862, 8 Am. St. Rep. 431]; Johnson v. State, 26 Tex. App. 631 [10 S. W. 235]; * * * Sullivan v. State, 31 Tex. Cr. R. 486 [20 S. W. 927, 37 Am. St. Rep. 826]; Jackson v. State, 32 Tex. Cr. R. 192 [22 S. W. 831]; Powell v. State, 32 Tex. Cr. R. 230 [22 S. W. 677]; Mathis v. State, 34 Tex. Cr. R. 39 [28 S. W. 817]; Burris v. State, 34 Tes. Cr. R. 387 [30 S. W. 785]; Plew v. State, 35 S. W. 366.” See, also, cases cited in section 1183 of White’s Ann. P. C.

In the case of Thumm v. State, 24 Tes. App. 702, 7 S. W. 238, this court, speaking through Judge Willson, says: ‘‘To one who brings on an affray, or who prepares himself for an encounter in which he intends to wreak his malice, the plea of self-defense is not available, though his own life be imperiled in the affray. If a person by his own wrongful act brings about the necessity of taking the life of another, to prevent being himself killed, he cannot say that such killing was in his necessary self-defense. A person cannot avail himself of a necessity which he has knowingly and willfully brought upon himself. Willson’s Texas Crim. Laws, § 981.’ If a person voluntarily engage in a combat, knowing that it will or may result in death, or some serious bodily injury which may produce the death of his adversary or himself, he cannot claim that he is acting in self-defense.” This has always been the rule in this court, and under the evidence herein copied we think it apparent, beyond the peradventure of a doubt, the court did not err in submitting it to the jury for their determination, and the court instructed the jury that, if they did not find beyond a reasonable doubt that defendant provoked the difficulty with the intention and purpose to kill Neyland, his right of self-defense would not be impaired, and charged them: “Upon the law of self-defense you are instructed that if from the acts of the said Buck Neyland, or from his words coupled with his acts, there was created in the mind of the defendant a reasonable apprehension that he (the defendant) was in danger of losing his life, or of suffering serious bodily injury at the hands of said Buck Neyland, then the defendant had the right to defend himself from such danger or apparent danger; and it is not necessary to the right of self-defense that the danger should in fact exist, but if it reasonably appeared to the defendant, at the time, viewed from his standpoint, that such danger existed, he would have the same right to defend against it that he would have were the danger real. And a party so unlawfully attacked is not bound to retreat in order to avoid the necessity of killing his assailant. If you believe that the defendant committed the assault as a means of defense, believing at the time he did so (if he did so) that he was in danger of losing his life, or of serious bodily injury at the hands of said Buck Neyland, or if the said Neyland had shot him with a Winchester, then you will acquit the defendant, and say by your verdict ‘Not guilty.’ ” This presented the matter as favorably to defendant as the evidence justified. We are of the opinion that the evidence was of that cogency and force to authorize the submission of the issue of provoking the difficulty, to the jury. When the evidence shows that one gets angry with another, goes and gets a pistol,'and goes to the home of the person with whom he had a difficulty, coming up between two houses, with the pistol in his hand, it is extremely doubtful if the court should have submitted the issue of self-defense at all; but if he does do so, and then in connection therewith he tells the jury if they believe under the facts and circumstances that such acts were done with the intention to kill his adversary, he could not claim self-defense, but if by his acts and conduct the jury did not find beyond a reasonable doubt such was his intention, his right of self-defense would not be impaired, and if Neyland fired first, or it reasonably appeared to him that his life was in danger, to acquit, the case is presented in a way he cannot complain.

The judgment is affirmed.

DAVIDSON, P. J.

(dissenting). In dissenting I do not care to make a statement of the case; it being, I think, sufficiently stated by Judge HARPER. Under the statement made in the majority opinion the evidence excludes the idea that the issue of provoking the difficulty was in the'case. Appellant had the right of self-defense in the case untrammeled by the issue of provoking the difficulty, if his or the state’s evidence be correct. As I understand the facts stated, if the question of provoking the difficulty is in the case at all, it is by reason of the fact appellant armed himself and followed Neyland until there was an 'opportunity to shoot, and as soon as he was'in shooting distance of Ney-land began shooting. This does not raise the issue of provoking the difficulty. If he armed himself for the purpose of shooting Ney-land, and as soon as he got within reach began shooting, the issue of provoking the difficulty could not be in the case. If he armed himself intending to resist an attack by Ney-land, his right of self-defense should not have been trammeled by the issue of provoking the difficulty. It was either an unprovoked assault on his part for the purpose of killing Neyland, or he acted in justifiable self-defense. Under either view of the case from the testimony the issue of provoking the difficulty could not be in the case. The state’s evidence makes appellant the attacking party. He did not undertake to provoke Ney-land to shoot, but simply followed and shot at him after arming himself for that purpose. The unquestioned rule in Texas is thus stated by Mr. Branch in his Criminal Law of Texas, section 464: “If he (the slayer) provoked the combat or produced the occasion in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing would be murder, no matter to what extremity he may have been reduced in the combat.” Cunningham v. State, 17 Tex. App. 95; Thuston v. State, 21 Tex. App. 248, 17 S. W. 474; Keeton v. State, 59 Tex. Cr. R. 316, 128 S. W. 413; Arto v. State, 19 Tex. App. 136; Roach v. State, 21 Tex. App. 254, 17 S. W. 464; Thumm v. State, 24 Tex. App. 703, 7 S. W. 236; Puryear v. State, 56 Tex. Cr. R. 238, 118 S. W. 1042; Johnson v. State, 26 Tex. App. 631, 10 S. W. 235; Allen v. State, 24 Tex. App. 224, 6 S. W. 187; Green v. State, 12 Tex. App. 449; Cartwright v. State, 14 Tex. App. 486; Crist v. State, 21 Tex. App. 367, 17 S. W. 260; Warren v. State, 31 Tex. Cr. R. 573, 21 S. W. 680. This would be provoking the difficulty, and would be a limitation upon his right of self-defense, but the converse of the rule is equally clear that it was error to charge on provoking the difficulty when the evidence does not raise the issue. See authorities collated by Mr. Branch in his work on Criminal Law, § 466, where a great number of the cases are collated. If the state’s case is an unprovoked homicide, and defendant’s case is perfect self-defense, the issue of provoking a difficulty is not in the ease. Beginning a difficulty is not provoking one. Casner v. State, 43 Tex. Cr. R. 12, 62 S. W. 914; Dent v. State, 46 Tex. Cr. R. 173, 79 S. W. 525; Carr v. State, 48 Tex. Cr. R. 288, 87 S. W. 346; Roberts v. State, 48 Tex. Cr. R. 380, 88 S. W. 221; Reese v. State, 49 Tex. Cr. R. 243, 91 S. W. 583; Lockhart v. State, 53 Tex. Cr. R. 595, 111 S. W. 1024, and for further cases see section 466, supra.

Again it is well stated as the rule that, if the only question involved is, Who made the first attack? provoking the difficulty is not in the case. Casner v. State, 43 Tex. Cr. R. 12, 62 S. W. 914; Pollard v. State, 45 Tex. Cr. R. 121, 73 S. W. 953; Reese v. State, 49 Tex. Cr. R. 243, 91 S. W. 583; McCandless v. State, 42 Tex. Cr. R. 61, 57 S. W. 672; McMahon v. State, 46 Tex. Cr. R. 549, 81 S. W. 296; White v. State, 42 Tex. Cr. R. 570, 62 S. W. 575. If the deceased was the aggressor and began the difficulty, it was error to charge on provoking the difficulty. Jones v. State, 17 Tex. App. 611; Dent v. State, 46 Tex. Cr. R. 173, 79 S. W. 525; Crowson v. State, 51 Tex. Cr. R. 14, 100 S. W. 782.

Again, it is stated as a proposition supported by the authorities that going to a place, though armed, will not of itself deprive a defendant of the right of self-defense, and therefore provoking the difficulty would not be in the case. Grayson v. State, 57 S. W. 809; Hall v. State, 42 Tex. Cr. R. 449, 60 5. W. 769; Shannon v. State, 35 Tex. Cr. R. 6, 28 S. W. 687, 60 Am. St. Rep. 17; Crow v. State, 48 Tex. Cr. R. 421, 88 S. W. 814; Cartwright v. State, 14 Tex. App. 486.

It is unnecessary to pursue this thought further. Under the evidence the issue of provoking the difficulty was not raised by the evidence, and appellant’s right of self-defense was improperly limited by a charge on provoking the difficulty. As before stated, this was a case in which either the defendant intentionally went to where Neyland was for the purpose of killing him, and proceeded to. shoot at him, or it was an attack by Ney-land upon him when he had done nothing to provoke him to the difficulty, and justified him in firing upon Neyland. The issue was not provoking the difficulty, but the issue was who was the attacking party. Under such circumstances the limitation of provoking the difficulty should not have limited the right of self-defense. I, therefore, respectfully enter my dissent.