35 S.W. 389


ABRAM
v.
STATE.


Court of Criminal Appeals of Texas.
April 22, 1896.

        Appeal from district court, Freestone county, Rufus Hardy, Judge.

        Pink Abram was convicted of manslaughter, and appeals. Reversed.

        Mann Trice, for the State.

        HURT, P. J.

        Appellant was convicted of manslaughter, and given two years in the penitentiary, 
and prosecutes this appeal. The court submitted to the jury the following charge: "No one 
who voluntarily brings on an affray, in which he intends to wreak his malice, can avail 
himself of the plea of self-defense, even though his own life is endangered in the affray. 
If the slayer provoked the contest which resulted in the killing of the deceased, he is 
guilty of manslaughter, although he may have done the act of killing in order to save his 
own life." To the giving of this charge the appellant by his counsel excepted at the time.

        The first question presented is whether the testimony required such a charge. The 
witness Manning swears: "That Rasbery Abram [deceased], Pink Abram [defendant], 
Mandy Burns, Barbary Thomas, and witness had started from Mandy Burns' house to go 
to a festival. Pat Wauls and Pink Abram were behind, and there was hallooing and 
cursing, like boys will do on Christmas times. Deceased said to the defendant that he 
must dry up, and go off, or that he would make him. Defendant said, `Make me.' They 
cursed each other. Defendant said that he would cut the deceased's heart out. Then I heard 
the deceased say that `You have cut me, and I am going to kill you.' Deceased then 
knocked and kicked the defendant down three times. The deceased was on top of the 
defendant, and I heard defendant make a noise like a hog that had been stuck. I told the 
deceased to get off of Pinkey; that, `You fool, you are killing Pinkey.' I then pulled 
deceased off of Pinkey. Deceased said that he was a dead man, walked off a few feet, and 
fell in the road. I called some one to come to me. Chance Cannon came, and I left him 
with deceased, while I went to the festival, and Bob Mims and Floyd Senter returned with 
me to the scene of the killing." These are the facts immediately attending the homicide.

        Quite a number of witnesses were introduced for the purpose of proving that the 
witness Manning had frequently stated that he did not know that the deceased was cut at 
all until after he pulled him off of the defendant. This testimony could serve but one 
purpose, and that is to impeach Manning. It was not evidence of what occurred at the 
time.

        Under the facts stated by Manning, was the doctrine of provoking the difficulty 
involved in this case? It was not. This doctrine

Page 390

applies in cases in which the accused inflicts the mortal blow to save his life or prevent 
serious bodily injury. In this case he was the aggressor, and inflicted the wound before 
his life or body was endangered at all. The testimony of this witness is to the effect that, 
when the deceased told him he must dry up, or go off, the defendant said, "Make me." 
After cursing one another, the defendant said that he would cut the deceased's heart out, 
acting at once by inflicting the mortal wound upon the deceased with a knife. The 
doctrine of provoking the difficulty is in the nature of an estoppel. The defendant 
introduces evidence tending to show that he acted in self-defense. The state replies, "You 
are estopped from making such a plea, because you produced the occasion or provoked 
the difficulty with the view of obtaining a predicate to slay your adversary, or to inflict 
upon him serious bodily injury." The state never insists upon this principle of law, except 
in cases in which the mortal wound, or the assault and battery, as the case may be, is met 
by the plea of self-defense. Then the state can rely upon this doctrine to deprive the 
defendant of such a right. In this case the defendant was in no danger when he inflicted 
the mortal wound. The first violence used was by him, and that with a knife. The court 
should have instructed the jury that if they believed, from the evidence, beyond a 
reasonable doubt, that the defendant and the deceased were engaged in a verbal 
altercation; that the deceased ordered him to dry up, or go off, or else he would make 
him; that they got into a quarrel, each party engaged in cursing the other; and that the 
defendant with a knife, being a deadly weapon, stabbed the defendant and killed him, 
with malice aforethought,—that he would be guilty of murder. Of course, the court 
should have defined malice. We fail to find any provocation in this case which was 
sufficient to reduce the homicide to manslaughter. All that was done by the deceased was 
to tell the defendant that he must dry up, or go off, or that he would make him. There was 
no attempt to use violence upon the defendant, no attempt to execute his threats; but, 
immediately after cursing one another, the fatal stab was given by the defendant. But one 
witness details the facts attending the homicide. The other testimony, as before stated, is 
for the purpose of impeaching this witness, Manning. Hence, no theory could be 
submitted to the jury, except that based upon the testimony of Manning. Of course, the 
court should have instructed the jury in regard to this testimony as tending to impeach 
Manning, but this impeaching testimony was not sufficient to present a theory in the case. 
While the doctrine of provoking the difficulty was not in the case, submitting it to the 
jury evidently worked no injury to the accused, nor was it calculated, under the 
circumstances of this case, to confuse or mislead the jury. The jury, no doubt, believed 
that the court had reference to the act of the defendant in stabbing the deceased. If there 
was evidence tending remotely to present self-defense, this charge would be very 
objectionable, because the jury might then have believed it had reference to the 
boisterous and profane language of the defendant; but there is no evidence at all 
presenting the theory of self-defense. The whole case, as before stated, rests upon the 
testimony of Manning, and he makes the defendant the aggressor, armed with a deadly 
weapon up to the time when he inflicted the mortal wound. After that the deceased 
knocked him down several times; but, the mortal wound having been inflicted, there was 
no self-defense to the acts of the deceased.

        At the request of counsel for the state, the court submitted the following charge to 
the jury: "You are further instructed, at the request of the state, that, as to the instructions 
of acquittal upon a reasonable doubt of defendant's guilt, such doubt must be reasonable, 
and based upon sound judgment. It must be fairly deducible from the evidence, 
considered as a whole. The mere possibility that the defendant may be innocent will not 
warrant an acquittal upon the ground of reasonable doubt." To this charge the defendant 
excepted at the time, and reserved a bill of exceptions. We have repeatedly held that the 
statute upon this subject is an all-sufficient charge. Submitting to the jury the statute on 
reasonable doubt, the court will have done its whole duty pertaining to this subject. It is 
not proper for the court to discuss what the reasonable doubt is. The jury is as competent 
to determine that as the court. Again, this charge is calculated to impress the jury with the 
belief that the testimony itself must indicate the "reasonable doubt" affirmatively, when 
the true principle is that the criminative facts must exclude it. The burden is upon the 
state, by proof, to exclude this "reasonable doubt." Such a charge as this, in substance, 
has been denounced by this court in a number of cases. Holmes v. State, 9 Tex. App. 313; 
Massey v. State, 1 Tex. App. 563; Robertson v. State, 10 Tex. App. 602. For the giving of 
this special charge by the court, the judgment is reversed, and the cause remanded.