11 S.W. 627


KELLEY
v.
STATE.


Court of Appeals of Texas.


May 8, 1889.

Page 628

Appeal from district court, Freestone county; T. J. GIBSON, Special Judge.

Chance Kelley appeals from a conviction for manslaughter.

Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

It was excepted to the charge to the jury that the instructions contained therein with regard to mutual 
combat were uncalled for by any evidence in the case, and were calculated to confuse and mislead the jury. 
From the facts we think it clear that one or the other of the parties provoked or brought on the conflict,
and that the one or the other not chargeable with this acted upon real or apparent necessity, and this 
excludes the idea of a mutual combat. Rosborough v. State, 21 Tex. App. 672, 1 S. W. Rep. 459. There was no
proposition to nor understanding between the parties that they were to fight. On the contrary, the 
proposition and understanding were that they were to wrestle for a sum of money, or upon a bet as to which 
could throw the other down. In preparing for this contest, one or the other got mad, drew his knife, and 
assaulted the other with it. The evidence is conflicting as to which party commenced the fight. During the
fight both parties were cut with a knife. Under the facts of the case it was error to charge the law of 
mutual combat.

As to defendant's right of self-defense, the court charged the jury in the language of article 572 of the 
Penal Code, which requires a resort to all other means to prevent a threatened injury before there is a 
resort to homicide, in order to render it justifiable. This instruction was excepted to, and defendant's
counsel requested a special instruction in lieu thereof, as follows: "If you believe from the testimony in
the case that there was an unlawful attack made upon defendant by deceased, and that the attack was of such
a nature that the defendant had reasonable grounds to believe that he was in immediate and impending danger
of being murdered, or of receiving serious bodily injury, by his assailant, he is justifiable in killing his
assailant when [if?] at the time of the killing some act has been done by the deceased showing evidently an
intention to commit one of such offenses; and the defendant in such case may act promptly, without resorting
to other means before killing his assailant, because in such case the law presumes the party's safety 
depends upon his prompt action in killing his assailant; and if you so believe from the evidence you will 
find the defendant not guilty," — which instruction the court refused to give.

The instruction was correct as a proposition of law; was, in our opinion, applicable to the facts in 
evidence; and should have been given as part of the law of the case. Penal Code, art. 570; Willson, Crim. 
St. § 970. According to the testimony of defendant's witnesses, he was first assaulted by deceased, and cut 
upon the neck with a knife, before he drew and used his knife; and that deceased was still assaulting him
when he (defendant) inflicted the cuts upon deceased with his knife. Under the facts, it was error to charge 
the rule of law announced in article 572 of the Penal Code. Ormond's Case, 24 Tex. App. 496, 6 S. W. Rep. 
544. For errors in the charge of the court the judgment is reversed, and the cause remanded.