File contributed by Lisa Lach and proofed/formated by Dena Stripling

Appeal from district court, Bastrop county; L. W. MOORE, Judge.
Haywood Potts was indicted for the theft of a gun from one H. Perkins. The gun 
was of the value of $45, and was the property of one W. W. Knowles, for whom said
 Perkins was holding it. Perkins testified that on the night of the theft defendant
 came to his (Perkins') house, in a wagon, peddling buffalo meat; that he stayed all
 night, sleeping with two of the laborers on the place in the room where the gun was;
 that he left the place soon after breakfast the next morning; and that the gun was
 not missed until some time afterwards. Smithson, the constable who arrested defendant,
 testified at the preliminary examination. After the preliminary examination, and before
 the trial, Smithson died and the testimony taken by the examining magistrate was burned.
 Perkins, who heard the testimony of Smithson, was allowed to reproduce it. He stated, 
in that behalf, that Smithson testified that he sent word to defendant that he had heard 
that defendant had a gun; that he (Smithson) wanted to buy a gun of that kind, and 
requested defendant to bring it to him for examination; that defendant sent it by 
one Stanley, but Smithson refused to buy it, alleging that the price was too high;
 that he told Stanley to leave it at a certain store, and to tell defendant to come
 to town, as he thought that they could make a trade; that Stanley left the gun as 
requested, and a few days afterwards defendant came to town, and offered to sell the
 gun to Smithson, stating that it was his (defendant's) gun; that Smithson then 
arrested defendant. The clerk of the district court testified that he saw in his 
office the papers comprising the proceedings of the examining court in defendant's
 case, but had not seen them since the court-house was burned. The examining 
magistrate testified that he reduced to writing all the testimony given on the 
preliminary examination, and turned it over to the clerk of the district court.
 Defendant offered no evidence, but moved for a new trial on the ground of newly-discovered 
evidence.


The oral reproduction of testimony given on the preliminary examination in a criminal 
case by a witness, since deceased, is properly allowed, where the examining magistrate
 testifies that he reduced all the testimony to writing, and returned it to the district 
clerk, and the district clerk testifies that he saw in his office the papers returned by
 the examining magistrate, that his office was afterwards burned with a great many papers
 and records, and that he never saw the papers in question again.

Where a witness, since deceased, testified before an examining court and a witness offered 
to prove his testimony so given, the record of which had been destroyed by fire, consuming
 other records deposited in the court-house, was unable to repeat the language of the 
deceased witness, he might testify to the substance thereof.

On an indictment for theft of a gun, the testimony of a deceased witness given on the 
preliminary examination was reproduced orally. Such testimony was to the effect that 
defendant, through a third person, offered to sell the gun to the deceased witness,
 who declined to buy, but sent word to defendant to come to see him; that defendant
 came, said the gun was his, and offered to sell it to deceased; that deceased, who 
was a constable, thereupon arrested him. The affidavit in support of a motion for a 
new trial on the ground of newly- discovered evidence alleged that affiant, a deputy
 sheriff, was present at the arrest; that nothing was said about the gun before the 
arrest; and that defendant did not claim the gun. Held, that a new trial should have
 been granted.
**457 *665 J. H. Burts, Asst. Atty. Gen., for the State.


WHITE, P. J.
As a predicate for the reproduction of his testimony it was proven that Smithson, 
the main prosecuting witness who testified at the examining trial, was dead, and also
 that the testimony taken in writing at said trial, including Smithson's, was in all
 probability destroyed in the fire which burnt up the Bastrop court-house. No error 
was committed in permitting the witnesses Perkins and Hearn, who had heard Smithson 
testify at said trial, to reproduce the deceased witness' testimony; and, whatever 
the former rule on the subject may have been, it is now well settled that, to reproduce
 testimony given at a former trial by a witness who has since died, the person called 
to prove it may state its substance, if unable to repeat its precise language. Simms
 v. State, 10 Tex. App. 132, and authorities cited. As part of Smithson's testimony,
--what transpired between himself and Stanley, who brought the gun to him for sale,
--was competent, and necessary to elucidate and explain the subsequent connection of
 both Smithson and defendant with the gun, which was left by Stanley in a store-house
 at Elgin, at the instance of Smithson, to await defendant's coming, we cannot see that
 the court erred in admitting the testimony. The witnesses who reproduced Smithson's
 testimony stated that Smithson had sworn on the examining trial that when defendant
 came to Elgin he claimed the gun as his property, and that Smithson then arrested 
him for theft of the gun. This portion of the testimony, with regard to defendant's 
claim of the gun, was the most damaging evidence against him. In his motion for a 
new trial, defendant set up newly-discovered evidence, to-wit, the evidence of one 
Pinkard, a deputy-sheriff of the county, who was present when the arrest took place,
 and who, in his affidavit, stated, in substance, that nothing *666 was said by 
defendant or Smithson about the gun before the arrest, and that defendant did not
 claim the gun before or after his arrest. Looking to the circumstances attending
 the case; the fact that Smithson was dead; that several years had elapsed since 
his testimony was given at the examining trial; that the proposed new testimony was 
that of a witness who was himself present at the time of the occurrence, and who
 from his official position would likely remember what criminative facts transpired;
 that the testimony as given was from parties who were not present, and who were 
relying upon their recollection of what another said about it,--taking, we say, all 
these facts into consideration, we think the court should have granted the new 
trial in order that defendant might have the opportunity to avail himself of such 
newly- discovered evidence. The judgment is reversed, and the cause remanded.

Tex.Ct.App. 1883.
POTTS v. STATE.
14 S.W. 456, 26 Tex.App. 663
END OF DOCUMENT
================= 


APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W. Moore.
*1 At the spring term, 1881, of the District Court of Bastrop county the grand jury 
returned an indictment charging that the appellants, Dave Cartwright and John Nash,
 did, on the preceding twelfth day of February, kill and murder one B. F. Davis, by 
shooting him with pistols, etc. The case came to trial in May, 1883, when the 
appellants were found guilty of murder in the second degree, and a term of six years
 in the penitentiary was assessed and adjudged against each of them.

The affray which resulted in the homicide took place four or five miles from the 
town of McDade, on the road leading from there to the town of Bastrop.
William Paris, the first witness for the State, testified that on the twelfth day
 of February, 1881, he saw Davis, the deceased, about half a mile from McDade on the
 road towards Bastrop. Witness was driving a four-mule wagon, and was riding the left-hand 
near mule of the team. Deceased got into the wagon, and seated himself about midway
 of it, with his right side towards the witness. He had a breech loading double barreled
 shot gun on his lap, or in his hands, with the muzzle pointing towards McDade; and in
 this manner he rode about three miles on witness's wagon. While going along, the 
deceased showed his cartridge belt and several cartridges to the witness. The cartridge 
shells were loaded. Witness, with his wagon and the deceased, had gone about the distance
 stated, and had got within about one hundred yards of James Townsend's house, when the 
defendants, Dave Cartwright and John Nash, rode up in a gallop from the direction of 
McDade. Cartwright rode up on the right hand side of the wagon; Nash in rear of it. 
Cartwright said "Hold up there;" he had a pistol in his hand. Witness then looked 
around to stop his mules, and the shooting commenced. Looking around, the witness 
saw Cartwright shoot once. There had been shots before he looked around and saw
Cartwright shoot. Before the shooting began the witness had observed Kelton 
(a witness for the defense) working at a chimney on the east end of Townsend's
house. Several shots were fired behind the witness. He did not see Nash until 
after the firing had ceased. Nash then had a pistol in his hand. Witness thought
 there were from three to five shots fired, probably more. Two of them struck 
the end of the wagon bed; one went through the witness's clothing, and another 
hit one of his mules, entering the hind part of its leg and coming out in front.
 Witness saw blood on the clothes of the deceased, but did not see his wounds.

Cross-examined, the witness stated that after the firing ceased Cartwright told him
 to take the gun from the deceased, who was rather bent over in the wagon. Witness
 took the gun from the deceased, and laid it on the ground. Deceased was still alive,
 but said nothing. The witness distinguished no difference in the sounds of the different
 shots; but on hearing read his sworn statement made at the inquest held the day 
after the killing, the witness adhered to it in preference to his present recollection.
 In that statement the witness had said that he did not know whether the deceased 
fired any of the shots or not; that he did not see the deceased shoot, "but there 
were sounds that seemed different shots from the pistols."
*2 Aleck White, for the State, testified that he saw the deceased in Paris's wagon,
 on the McDade road, about a mile from James Townsend's, between two and three
 o'clock in the afternoon. When witness got in about a quarter of a mile of Townsend's,
 he was passed by the two defendants, who were riding in a slow lope towards the 
town of Bastrop. Witness saw them when they were a short distance behind Paris's 
wagon. The witness heard three or four shots, but was so frightened that he did not
 see who fired them.
Doctor Holt, for the State, testified that he examined the body of the deceased a day
 or two after the homicide, and found in it two holes, which he took to be bullet holes
 made by a revolver or six shooter. One of the bullets entered just below the right
 shoulder blade and came out through the right nipple. The other bullet entered on
 the right of the back bone, three or four inches below the one first mentioned, and 
came out below the right nipple.
Tom Bishop, for the State, testified that he was constable of the McDade precinct at
 the time the deceased was killed. On the day that event occurred, the witness was 
requested by Horace Nash to execute a writ of sequestration which, at his instance,
 was being issued by the justice of the peace, for the seizure of the gun of B. F.
 Davis, the deceased. Witness replied that he was too unwell to execute the writ,
 and asked the defendant Cartwright to execute it. Cartwright had been in the habit
 of executing process for the witness when the latter was unable to attend to 
business.
W. H. Coulson, Sr., the justice of the peace, testified, for the defense, that 
on the day of the homicide he, at the instance of Horace Nash, issued a writ of 
sequestration directing the seizure of the gun which Davis, the deceased, then 
had. While the writ of sequestration was being prepared, Horace Nash and the defendant
 Cartwright were present in the witness's office. When the writ was issued the 
witness laid it on the table, and either Nash or Cartwright took it up from the 
table, and they went off together. Witness supposed that it was Cartwright who 
picked up the writ from the table. Cartwright had frequently executed process 
issued by the witness, and attended as an officer upon the witness's court. 
Witness could not say how many writs Cartwright had executed, nor how many arrests
 he had made, but knew that he had executed several writs, and that the people of
 McDade, as well as witness, regarded him as an officer. Witness had never 
specially deputized Cartwright.
Horace Nash, for the defense, testified that Davis, the deceased, on the day he
 was killed, pledged his gun to witness for a loan of sixty dollars, but took the
 gun away from where it had been left, and refused either to give it up to 
witness or to repay him the money. Witness went to Bishop, the constable, and 
asked him to execute a writ of sequestration, which was being prepared for the 
seizure of the gun. The constable said he was too sick to attend to business, 
and asked witness to see the defendant Cartwright. The constable and witness saw
 Cartwright, and the latter went with witness to the office of Coulson, the 
justice of the peace, when the writ of sequestration was issued by Coulson for 
the gun. Cartwright took the writ, and as he was starting off with it, he 
summoned the defendant John Nash to go with him, and they two went off on their 
horses together. The witness at that time regarded Cartwright as an officer.
*3 On his cross-examination, the witness stated that he demanded of the deceased
 the payment of the money, or, else, the possession of the gun which he had 
pledged to witness as security for the money. Witness told the deceased that 
if he did not deliver up the gun he would kill him, and at that time the witness
 held in his hand a gun of the defendant John Nash, but he made no attempt to use
 it. Neither of the defendants were present when witness told the deceased he 
would kill him if he did not deliver up the gun. When witness and the deceased 
separated, the latter went to the hotel and got the gun, and the former went to
 the justice of the peace to get a writ of sequestration for the gun. The gun had
 never been put absolutely in witness's possession, but it was understood between
 him and the deceased that it should remain at the hotel and stand good for the 
money witness had loaned the deceased. John Nash, one of the defendants, is witness's
 nephew.
W. R. Kelton, for the defense, testified that he was standing on a scaffold about
 breast high, and was engaged in putting up a chimney at the east end of Townsend's
 house, which was some fifty yards from where the shooting took place. Witness first
 heard one of the parties on horseback say either "hold up" or "do not shoot." 
Which of these expressions was used he could not remember. At the same moment he
 saw the deceased, in Paris's wagon, with a shot gun elevated, and saw him shoot
 twice. The first shot was directed towards the man in rear of the wagon, and the 
second towards the man on the right of the wagon. Then the witness heard other shots,
 and judged them to be from pistols, as these reports were different from those of 
the two shots first fired. Witness was certain that the deceased fired two shots 
first, and that no shots were fired before them. From where the witness stood upon
 the scaffold he could see the deceased plainly; and he saw Paris take the gun out 
of the wagon after the firing. Witness immediately went to where the firing took place.
 He examined the gun, but did not take the shells out of it. He saw that the shells 
had been freshly exploded or snapped. In all, there must have been five, six, or seven
 shots fired. Witness, however, saw no other person shoot besides the deceased.
J. H. Tanner, for the defense, testified that his attention was first called by hearing 
two shots, which, at the moment, he supposed were fired by an old negro who was in the
 habit of hunting with a shot gun in the neighborhood. Directly, however, other shots 
were fired, and witness immediately went down to where they were fired. The deceased 
was humped over in the wagon. Witness saw Mr. Paris take up a shot gun as witness 
approached the wagon. Witness took hold of the gun. It appeared to have been freshly
 fired off. Witness examined it, and saw that the cartridges had been fired or 
snapped. Defendant Cartwright told the witness not to let anyone take the cartridges
 out of the gun. Some time in the course of the next day the witness and several 
others examined the gun, and in it found two empty shells, one in each barrel. 
Witness cautioned persons not to handle the gun, and at night he put it in a room, 
and between two bed-ticks, and he was confident that no one handled it, except in 
his presence, until the two empty shells were taken out of it. The reports of the 
two shots first fired resembled those of a shot gun, as they were different from 
those subsequently fired. On his cross-examination, the witness said he could not
 see who did the firing, on account of a room on the end of the gallery obstructing 
his view.
*4 James Townsend testified that he was not at his home when the deceased was killed,
 but returned there shortly after that occurrence. Witness asked defendant Nash if he
 had suffered any damage in the affray, and Nash replied ""Only this," pointing to the
 sleeve of his coat, in which the witness then saw there were a half dozen or more holes
, as if made by shot.

In rebuttal, the State examined W. G. Miller, who testified that he was county surveyor
 of Bastrop county, and, about two years ago, had received a letter from the deceased's 
father, requesting him to bring his chain and compass to Townsend's, where the deceased
 was killed. The witness went, and, on the grounds, found not only the writer of the
 letter, but the then prosecuting attorney and Mr. William Paris. Mr. Paris took the 
witness to the spot where he said the wagon was standing when the deceased was shot. 
Witness measured the distance from that spot to the chimney at the east end of Townsend's
 house, and found it to be one hundred and seventy-two varas on a direct line. There w
ere no trees intervening directly on the line, but there were ten or twelve trees at
 various distances from each other and from three to seven feet distant from the direct 
line.


Although one committing a homicide by his own wrongful acts produced the necessity for
 killing in order to save his own life, it does not follow that the homicide is 
inexcusable. Consideration must be given to the wrongful acts by which the right of
 self-defense is claimed to be abridged or forfeited.


The right of self-defense is not impaired by mere preparation for the perpetration of
 a wrongful act, unaccompanied by any demonstration, verbal or otherwise, indicative 
of the wrongful purpose.
G. W. Jones and J. D. Sayers, for the appellants, filed an able brief and argument, 
reviewing the evidence, the charge of the court below, and the authorities on which
 they relied for a reversal.
J. H. Burts, Assistant Attorney General, for the State:
1. The first assignment of error is not tenable. The testimony of W. H. Coulson, to
 the effect that he supposed that appellant Cartwright was a deputy sheriff, was 
irrelevant, and not admissible. Cartwright knew, himself, that he was not a deputy 
sheriff, and if he took extraordinary process to serve, without being an officer, 
he did so at his peril; and if appellant Nash accompanied him to serve such process,
 he did so at his peril. The testimony offered and excluded did not tend to show that
 either of the appellants believed Cartwright to be an officer clothed with authority
 to execute the process, and there was nothing in the testimony to make it admissible.
 (Staples v. The State, decided at this term, and authorities therein cited, 14 Tex.App.
 136.)
2. The second assignment of error, viz, "The court erred in not charging the jury the 
law of self-defense," is not tenable, and is not sustained by the record. The court
 states to the jury, viz: "Upon self-defense or justifiable homicide, you are charged
 that any party who is so attacked as reasonably to produce a fear or expectation of 
death or some serious bodily harm, the party so attacked is justifiable in taking the
 life of the party so attacking." This was all that the law would justify the court, 
on the facts, in charging on this point. And this court will note that the charge was 
not excepted to at the time it was given, nor were additional charges asked by appellant.
 And it was neither made a ground for new trial, nor was it calculated to injure the 
rights of appellants. (Code Crim. Proc., Art. 685; Maddox v. The State, 12 Texas Ct. App.,
 429.)
*5 3. The third assignment of error is not tenable, viz: That the court erred in the 
following portion of its charge, to wit: "You are charged that any attempt to execute
 any writ or process whereby property is to be seized by persons not authorized to 
execute such process is trespass. There is no evidence before you that Dave Cartwright 
is an officer authorized to execute such process. A constable cannot confer such 
authority upon any person, nor can any magistrate, except in the mode pointed out by
 law." This charge was not excepted to when given. But it is correct throughout. There
 is but one mode of conferring authority on a private person to execute process from 
a magistrate's court, and that must be upon a person of good character in an emergency.
 (Rev. Stats., Art. 1571.) If executed by an unauthorized person it is a trespass, as 
charged by the court. (Erwin et al. v. Bowman, 51 Texas, 513.)
There was no evidence before the jury that Cartwright was an officer authorized to 
execute such process, and it was proper for the court to tell them so. "It is the 
province of the judge to determine when there is or is not any evidence as to a certain
 fact." (Burrell et al. v. The State, 18 Texas, 713.)
Our Supreme court has always held that where there was no evidence to a given point,
 the court might so say to the jury. (Parker v. Leman, 10 Texas, 716; Bond v. Mallow
 17 Texas, 636.) These are civil cases, but there is no reason why the rule should
 not apply in criminal cases, as was held in Burrell v. The State, above cited.

But the charge was not excepted to when given, and being objected to for the first time
 on the motion for a new trial, and not being calculated to injure the rights of 
appellants, it will not be revised by this court; and thus this assignment is disposed
 of. (Grant v. The State, 2 Texas Ct. App., 167; Maddox v. The State, 12 Texas Ct. App.,
 429.)
4. The fourth assignment of error is not tenable, which is that the court erred in the
 following portion of its charge: "If you believe from the evidence that the defendant
 Dave Cartwright, accompanied by the defendant John Nash, if acting with him, were 
armed, and did undertake to seize, by virtue of a writ of sequestration, a gun in the
 possession of B. F. Davis, then B. F. Davis had the right to resist such seizure, 
and using force enough to prevent it; and if you further believe these defendants,
 being armed, did by their conduct induce the said B. F. Davis to believe his property
 was to be taken, or to kill him, then the said B. F. Davis would have been justifiable
 in taking the life of the defendants; and if you believe these defendants were placed
 under the necessity of taking the life of said B. F. Davis under such circumstances 
as these, and did so kill him, then they are not justifiable, but would be guilty of 
murder."
This paragraph of the charge, taken in connection with other parts of the charge, and 
in view of the evidence, is correct. The parties, without any legal authority, with
 drawn six shooters, assailed deceased on the highway, for the purpose of forcibly
 taking from him his property, which, according to the testimony of Horace Nash, was
 rightfully in his possession, and ordered him to ""hold up" for that purpose. They 
were not justified in this. They were trespassers. (Ross v. The State, 10 Texas Ct. 
App., 455; Erwin et al. v. Bowman, 51 Texas, 573.) They were wrongdoers. (Staples v.
 The State, 14 Tex.App. 136.) Deceased had the right to defend his property and his 
person to the extent of slaying his pursuing assailants, and it was proper for the 
court so to instruct the jury. (Penal Code, Arts. 572, 573, 574, 575.) The remaining
 portion of this paragraph of the charge correctly states the rule, where the accused, 
by his or their own wrong, bring about the necessity for taking life. (Gilleland v. 
The State, 44 Texas, 358.)
*6 5. The fifth assignment of error is not well taken; which is that the court erred
 in the following portions of its charge: "If you believe these defendants, acting 
together, without authority of law, to execute a writ of sequestration, were intending 
to seize the property of B. F. Davis in the execution of said writ, and if you 
further believe, though armed, they made no demonstration thereof, nor performed any 
act to indicate they intended to use any arms to secure possession of the property, 
nor to do any bodily harm to the possessor, then, if the said B. F. Davis, in resisting 
such seizure, used more force than was necessary, and resorted to a greater violence 
than necessary, and by such violence and use of a deadly weapon threatened the life of
 the defendants, or serious bodily harm, the defendants under such circumstances 
would not be justifiable in taking the life of B. F. Davis, but would be guilty of 
manslaughter."
This paragraph of the charge, if not critically correct, in view of the evidence, 
inured to the benefit of appellants, and of it they ought not to be heard to complain;
 and the cause on that account should not be reversed. (Jenkins v. The State, 1 Texas
 Ct. App., 346.) The charge in this respect, however, was in accordance with law. 
(Penal Code, Art. 597, subd. 2.) But, again, the charge was not excepted to when given,
 and was not calculated to injure the rights of appellants. (Code Crim. Proc., Art. 
685; Maddox v. The State, 12 Texas Ct. App., 429.)
6. The sixth assignment of error is untenable. It is: "The testimony does not support 
the verdict in this: 1. There is no evidence whatever that the defendants or either 
of them ever attempted to seize the gun or to execute the writ of sequestration. 2. 
There is no evidence going to show that the defendants or either of them made an 
assault, or indicated an intention to assault B. F. Davis before the said Davis
 fired upon them with his gun."
The record contradicts this assignment in both of the stated particulars. It was 
proved that appellants, without authority, took the writ in McDade, and followed 
deceased with the intention of seizing the gun; that they pursued and overtook 
deceased on the highway, and with drawn pistols galloped or loped up to him and
commanded him to "hold up;" which was of itself an assault with deadly weapons. 
(Penal Code, Arts. 484, 485, 496, subd. 8, 9.)
7. The seventh assignment, which is "the court erred in overruling defendants'
 motion for a new trial," is not tenable. All points raised by this assignment
 have been discussed and disposed of. This motion was correctly overruled.

8. The first special assignment made for appellant Nash is untenable; which is:
 "There is no evidence going to show that he knew his co-defendant did not have 
the authority to summon him to assist in the execution of the writ of sequestration."
 It was his duty to know that his co-defendant had the authority to execute the writ.
 But he has no cause for complaint, for the court fairly submitted to the jury the 
issue as to whether or not he knew that Cartwright had authority to execute the writ,
 and the question as to whether or not he engaged in the difficulty. There was 
evidence that he had his pistol drawn when first noticed in the difficulty.


HURT, JUDGE.
*7 Cartwright and Nash were convicted of the murder of B. F. Davis. The verdict 
was for murder of the second degree, the punishment being fixed at six years 
confinement in the penitentiary. It being the duty of the court to charge the
 law upon every phase of the case presented by the evidence, and to abstain 
from charging upon theories not supported by evidence, the appellants insist 
that this rule has been violated to their injury, and ask a reversal of the 
case because of this error.
Under the facts, or the different phases of the facts, of this case, is the 
charge obnoxious to this objection? A detailed account of the facts immediately 
attending the homicide is, by W. R. Kelton and J. H. Tanner, given as follows:

By W. R. Kelton (a witness for the defendants): Was standing upon a scaffold, 
about breast high, engaged in putting up a chimney on the east end of Townsend's
 house, about fifty yards from where the shooting of the deceased took place. I 
first heard one of the parties on horseback say, either "hold up" or "do not shoot,"
 which I do not remember. Just at that moment I saw the deceased on the wagon driven
 by Paris, with a shot gun elevated, and saw him shoot twice, first in the direction
 of the man to the rear of the wagon and then in the direction of the man on the 
right of the wagon; then I heard other firing from what I judged to be pistols, 
as the reports were different from the two shots first fired; am sure the deceased 
fired two shots first and that there were no shots fired before the deceased fired;
 could see the deceased plainly from where I stood upon the scaffold; saw Paris as
 he took the gun out of the wagon after the firing took place; examined the gun, but
 did not take the hulls out, but saw they had been snapped or exploded freshly; 
there must have been five or six or seven shots altogether fired; saw nobody but
 the deceased shoot.
By J. H. Tanner (a witness for defendants): Was sitting on the gallery when the
 shooting in which Davis was killed occurred; my attention was first called by 
hearing two shots fired. I first supposed that they were from the shot gun of an
 old negro, who was in the habit of hunting near, but directly other shots were 
fired. I immediately went down to where the firing occurred; the deceased was humped
 over in the wagon; saw Paris take a shot gun up as I went toward the wagon; took
 hold of it and it appeared to have been freshly fired; examined the gun and saw 
that the cartridges had been fired or snapped; Cartwright told me not to let anyone
 take the cartridges out of the gun. Some time during the next day several of us 
examined the gun and found two empty shells in the gun, when I put it in a room at
 night and between two bed ticks, and am confident that no one handled it, except
 in my presence, until the two empty shells were taken out. The sounds of the two
 shots fired first when the killing took place resembled those of a shot gun, as 
they were different from those afterwards fired; could not see who did the firing,
 as there was a room on the east end of the gallery, and between the place where 
the firing occurred.
*8 The facts relied upon by the State are, in substance, these: Cartwright and Nash,
 neither being an officer, left McDade with a writ of sequestration against the 
deceased for a shot gun. The deceased, B. F. Davis, had left McDade with said gun, 
going in the direction of Bastrop, and within a half mile of McDade he overtook 
the witness Paris, who was driving a wagon drawn by four mules. Davis got in the 
wagon, and when they had traveled about three miles, and were within about one 
hundred yards of the house of James Townsend, Cartwright and Nash rode up from 
the direction of McDade, in a gallop. Cartwright came up on the right hand side
 of the wagon; Nash was to the rear of the wagon. Cartwright said, "hold up there."
 Cartwright had a pistol in his hand. Paris then looked around to stop his mules,
 and the shooting commenced. Looking back he saw Cartwright shoot once. There had
 been shots fired before he looked around; * * * several shots were fired from 
behind his back. Witness Paris did not see Nash until the shooting was over. Nash
 then had a pistol in his hand. Witness thinks there were from three to five shots
 fired-- probably more. Two of the shots hit the end of the wagon bed, one went 
through his clothing, and another hit one of the mules. Davis was killed in this 
affray, being shot twice in the body.
The witness Paris, upon being cross-examined, swore that "he did not distinguish 
any difference in the sounds of the different shots;" but his evidence taken 
before the examining court being read to him, in which it appeared that he swore
 "that there were sounds that seemed different shots from the pistol," he stated
 that he would adhere to what he said in his statement made before the examining
 court, as it was the next day after the killing, when the facts were fresh in his 
mind, and his recollection was better than now.
This statement, we think, will suffice to present the main facts in the case, as well
 as the issues to be passed upon by the jury.
After charging the law applicable to murder of both degrees, the learned judge below,
 upon the issue of justifiable homicide, submitted to the jury these instructions:

"Upon self-defense or justifiable homicide, you are charged that any party who is so
 attacked as to reasonably produce a fear or expectation of death or serious bodily 
harm, the party so attacked is justifiable in taking the life of the party so attacking.

In this connection, you are further charged that whenever a party has produced by his 
own wrong acts any necessity to take human life in order to preserve his own life, he 
can not be excused or justified.
You are charged that any attempt to execute any writ or process whereby property is to
 be seized, by persons not authorized to execute such process, is trespass.
If you believe from the evidence that the defendant Dave Cartwright, accompanied by the 
defendant John Nash, if acting with him, were armed, and did undertake to seize, by
 virtue of a writ of sequestration, a gun in the possession of B. F. Davis, then B. F. 
Davis had the right to resist such seizure, and using force enough to prevent it. And 
if you further believe these defendants, being armed, did by their conduct induce the 
said B. F. Davis to believe that his property was to be taken, or to kill him, then
 the said B. F. Davis would have been justifiable in taking the life of the defendants. 
And if you believe these defendants were placed under the necessity of taking the life of
 said B. F. Davis under such circumstances as these, and did so kill him, then they are 
not justifiable, but would be guilty of murder.
*9 If you believe these defendants, acting together without authority of law to execute 
a writ of sequestration, were intending to seize the property of B. F. Davis in the
 execution of said writ, and if you further believe, though armed, they made no 
demonstration thereof, nor performed any act to indicate they intended to use any 
arms to secure possession of the property, nor to do any bodily harm to the possessor,
 then, if the said B. F. Davis, in resisting such seizure, used more force than was 
necessary and resorted to a greater violence than necessary, and by such violence 
and use of a deadly weapon threatened the life of the defendants, or serious bodily
 harm, the defendants, under such circumstances, would not be justifiable in taking
 the life of the said B. F. Davis, but would be guilty of manslaughter.
If you believe that Dave Cartwright did attempt to seize the property of B. F. Davis 
under a writ of sequestration, and if you believe John Nash was present, and honestly 
believe said Cartwright had authority to execute said process, and if in the proper 
execution thereof the said Nash's life or that of Cartwright became reasonably threatened,
 or some serious bodily harm to either, did shoot at said B. F. Davis to avert and 
prevent such threatened danger to himself or to Dave Cartwright, or if you believe 
the said Nash was present, yet if he did not engage therein, you will acquit him."

The first charge cited enunciates a proposition to which we cannot assent. This is
 the proposition: That whenever a party has produced by his own wrong acts any 
necessity to take human life in order to preserve his own life, he cannot be excused
 or justified.
What character of wrong acts must produce the necessity to take life? Suppose the
 wrong acts were not calculated to produce the necessity, but did have this effect? 
Again, suppose the wrong acts were not intended to "produce the necessity" by the 
wrong-doer? Would the party guilty of the "wrong acts" be guilty of culpable homicide,
 who, to save his own life, takes the life of another under the supposed cases?

Just here it is necessary for us to consider the nature or quality of the act, 

the doing of which will so far abridge one's right of self-defense that if he kill
 another, although to save himself from death or great bodily harm, he will yet be
 guilty of a felonious homicide in some of its degrees. It would be quite difficult
 to lay down a general rule by which all wrongful acts could be tested and adjudged
 sufficient or not sufficient to deprive one of the complete right of self-defense.
 This we will not attempt, but will at present confine ourselves to the conclusions
 reached by our examinations of quite a number of cases. From these cases we 
conclude that the doing of the following acts is held so far to abridge a man's right 
of defense that if he therefore kill another he cannot be acquitted of all crime:

1. Using provoking language or resorting to any other device in order to get another
 to commence an assault so as to have a pretext for taking his life, or to have a
 pretext for inflicting on him bodily harm. (Stewart v. The State, 1 Ohio, 66; 
Adams v. The People, 47 Ill., 376.)
*10 2. Provoking another for the purpose of bringing him into a quarrel, so that
 an affray be caused. (Selfridge's case, H. & T. on Self-Defense, p. 24.) But in 
Selfridge's case, though this proposition is stated generally, it is most clearly 
stated that no words nor libelous publications, however aggravating, will deprive 
one of the right of defense if in consequence of the same he is attacked.

3. Agreeing with another to fight him with deadly weapons. (State v. Hill, 4 Dev. 
& Batt., 491.)
5. Going to the place where another is, with a deadly weapon, for the purpose of 
provoking a difficulty, or with the intent of having an affray. (The State v. 
Neeley, 20 Iowa, 108; The State v. Benham, 23 Iowa, 154; Vader v. Commonwealth,
 12 Gratton, 717.)
The doing of the acts contained in the former illustrations will deprive the party 
of the right of a complete or full defense.
There is, however, another very important question presented in the fifth proposition.
 Suppose that a person should go armed to the place where another is, intending to 
provoke a difficulty, but says nor does anything to the other at all, or says nor 
does anything to the other tending to show that his purpose was to provoke him to a 
difficulty. Will the intent with which he went, though nothing said or done by him 
was intended or calculated to provoke the other, deprive him of the right of 
self-defense? By consulting the cases we will find that there was some act or 
word done or said tending to provoke the other.
Let us take the Neeley case. Cassady, the party killed, and Neeley, lived on 
adjoining farms, the former with his mother. The parties were not on friendly
 terms. The fences around Cassady's farm were bad. Neeley's stock broke through
 occasionally and were injured by dogs or otherwise. On the morning of the day 
of the homicide, Neeley, believing that his hogs were being injured by dogs, 
went with his gun to the field where some children belonging to the Cassady 
family were, and shot the dogs. After this and late in the afternoon, hogs were
 again heard in the field, apparently being worried by dogs. Neeley hurried 
there with his gun, and pursued the sister of Cassady and the children through
 the field in the direction of the house. On their return home, upon telling 
their story, Cassady, with his mother and sister, left the house and went down
 to the field, having with him a small rifle. Neeley in the meantime had left
 the field and gone in an opposite direction from the other parties, perhaps a
 distance of sixty or seventy rods. The other parties were passing along a path
 inside of the farm. At this time, some of the witnesses say that a shot was 
fired in the field, while others heard nothing of it. Neeley, either because 
he heard a shot or saw Cassady and his mother and sister, or for some other 
cause not developed, turned and walked back to where they were. When within a
 few feet of them, and after a few words had passed between them, the prisoner
 shot and killed Cassady.
*11 According to the testimony of some of the witnesses, who were some distance
 off, there was first heard the sharp crack of a rifle, then, instantly, the 
hoarser sound of a shot gun, and then, almost as quick, a third shot like the 
second. Neeley fired a small double barreled shot gun; and the third shot was 
at a dog, according to some of the witnesses, and, according to others, at Mrs.
 Cassady. The theory of the defense was justifiable homicide.
Under this state of facts, the court charged the jury that "If the jury believed,
 from the evidence, that the defendant brought on the difficulty, by voluntarily 
returning to the vicinity of the deceased with a deadly weapon, for the purpose of 
provoking a difficulty, his plea of self-defense would be of no avail, and in that 
case it would make no difference who fired the first shot." Under the surrounding 
facts of this case, this charge was correct. Neeley had shot the dog; had chased, 
but a short time before the killing, with a gun, Cassady's sister and the children 
from the field; and when he approached them the last time, he did not walk in an
 ordinary gait, but "approached rapidly." These acts, leaving out of the case what
 was said in the words which passed between him and Cassady just before the killing,
 were not only intended, but were evidently calculated to provoke a difficulty; and
 Neeley could but have known that an affray would be the result when he rapidly 
returned with his gun to where these folks were.
Benham's case was as follows: Shepard, the deceased, was at the creek, loading sand. 
Benham came up on the opposite side with a gun, and commenced talking about cattle. 
He said cattle were troubling him, and if they continued he would dog them. Shepard 
told him to dog them as much as he pleased, but not to cross the creek and drive them 
off with a horse. Benham told him that he, Shepard, had shot cattle, and now it was
 his turn. Shepard told him he had shot no cattle, and if he told him so again he would 
whip him. Benham repeated that he had shot cattle, and he, Benham would shoot too; and 
Shepard started across the creek towards him. As he was almost across the creek Benham
 met him with a gun, and pointed it at his, Shepard's breast. Shepard sprang out of the 
water, took hold of the gun to push it down, and it was discharged into his thigh. This 
statement is that which was relied upon for conviction.
In commenting upon the case, Judge Dillon makes this remark, bearing upon the question
 in hand: "Nor can the defendant get the benefit of the plea of self- defense if he
 sought the deceased with a view to provoke a difficulty, or to bring on a quarrel;" 
and he cites Neeley's case in support.
Here again we find that there was also something else besides going to the place where
 the person was, with a deadly weapon, for the purpose of provoking a difficulty.
 Benham evidently desired a difficulty, and did that which was calculated to produce
 one. Hence his acts, coupled with what he said to Shepard, were very properly 
held to be such provocation as would, when forced to save his life, defeat his 
right to a perfect defense to the homicide committed under such circumstances. But 
Neeley's case furnishes no support to the latter part of Judge Dillon's proposition,
 to wit: "or to bring on a quarrel." This proposition is in direct conflict with 
Selfridge's case, and if it has any support from any source we have not been able
 to find it. As stated, we do not believe it sound. We are of the opinion that 
Judge Dillon had reference to the principle enunciated in our first proposition,
 namely, "using provoking language," or resorting to any other device, in order
 to get another to commence an assault so as to have a pretext for taking his life.
 This principle we think sound and just. He who resorts to such means, or to any 
means, to provoke a difficulty, with a view to take the life of his victim, is not
 only guilty of murder, but murder of the first degree.
*12 Can this be said of a person who merely goes to another with intent to provoke
 a quarrel? We think not, unless the ultimate object or intent is to take the life
 of the party, or commit a felonious assault in some of its grades. In Selfridge's
 case it was held that: "No words spoken, or libelous publications, however
 aggravating, will compromit his complete right of defense." This should be modified; 
for we have seen that if the words were spoken with the intent to provoke an assault 
for the purpose of having a pretext for taking his life, he would be guilty of murder. 
There is a vast difference between this proposition and that stated by Judge Dillon, 
to wit, ""to bring on a quarrel." While we might cite a hundred cases bearing upon 
this subject, but little could be learned of value so long as the principle which 
underlies the whole question is not correctly understood.
What then is the principle? In Broom's Legal Maxims, page 255, it is said: "A man
 may not take advantage of his own wrong to gain a favorable interpretation of the
 law. He seeks the law in vain who offends against it." It is upon the plain 
principle, said Wright, Judge, in Neeley's case, "that one can not willingly and
 knowingly bring upon himself the very necessity which he sets up for his defense." 
It would follow, therefore, that the conduct of the party must show that he knowingly 
and willingly used language, or did acts which might reasonably lead to an affray or
 a deadly conflict; and that something besides merely going to the place where a
 person slain is, with a deadly weapon, for the purpose of provoking a difficulty,
 or with the intent of having an affray, is required in order to constitute such 
wrongful act. But it is not necessary that the additional acts or words should be 
done or said at the time of the homicide. (Neeley's case.) The former conduct of 
the defendant towards the party slain, with all of the attending circumstances 
occurring before, and in connection with the fact that he went to the person
 slain, and his language and bearing toward him at the time of the homicide, 
may, and frequently do, constitute that character of provocation which estops 
defendant from pleading the necessity which otherwise could be interposed.
But, reduced to the exact proportion of this case, the question is this: Suppose
 that a party without authority, not being an officer, rides rapidly up to 
another, with pistol in hand, intending to take his gun or other property by 
virtue of a writ, but says nothing, nor does any act, tending to show an immediate 
intention to execute the writ; will he be denied the right of defense, if he kill 
to save his own life? Will the fact that he thus approached the other, with pistol
 in hand, compromit his right of complete defense? He is armed, has the intent, and
 rapidly approaches, but says nothing nor does any acts tending to show the 
immediate intention to consummate the wrongful act.
*13 Bearing directly upon this question, Mr. Bishop says: "Between preparation 
for the attempt and the attempt itself there is a wide difference. The preparation
 consists in devising or arranging the means or measures necessary for the commission 
of the offense. Attempt is the direct movement towards the commission, after the 
preparation is made. To illustrate: A party may purchase and load a gun, with the
declared intention to shoot his neighbor, but, until some movement is made to use 
the weapon upon the person of his intended victim, there is only preparation and 
not an attempt." (Bish. Crim. Law, vol. 1, 764.)
"The movement to use the weapon upon the victim need not be the last proximate act
 prior to the consummation of the offense. If it be the first of a series of steps
 towards the execution--a commencement of execution--it will suffice." (Id.)

Now it must be borne in mind that there was no prior conduct or previous difficulties
 or ill feeling between any of these parties, connecting itself with the acts
immediately attending the homicide, as was the case in the Neeley case. Hence,
 can the acts of these defendants at the time of the homicide, without color
 from any other source, be held such provocation as will deprive them of the 
right of defense? Are they such acts (standing alone) as will in law have this 
terrible effect? Are defendants or either of them by these acts to be adjudged
 felons, although they took the life of Davis to save their own? We think not.
As before intimated, immediate acts must condemn; for there is a perfect want 
of any other acts, malice or bad blood. In fact, it was the merest accident
 that Cartwright was sent with the writ, or that Nash was summoned by him.
 Davis did not know that they had the writ, but from his position in the wagon
 and the manner in which he constantly held his gun, he was evidently 
expecting some one in pursuit. And just here it may be observed that his 
attitude in the wagon, and the position in which he held the gun, may 
very satisfactorily account for Cartright having out his pistol.
There being no such provocation as would compromit defendants' right of 
defense, and there being no attempt to execute the writ, was it proper 
for the learned judge below to assume in his charge these phases of the 
case? We are clearly of the opinion that it was not. The evident effect
 of such a course is to impress the jury with the belief that the acts of 
defendants were such provocation, and also that their acts constituted an
 attempt to seize his gun. With such belief the jury could not have 
consistently acquitted defendants or either of them. If these defendants,
 whether officers or not, charged down upon Davis and commenced firing 
upon him, they are guilty of murder at least; and if the jury so believed,
 they should have convicted them of such offense. But, on the other hand, 
if Davis commenced the battle, and defendants fired in their complete 
self-defense, they should not be convicted, and the jury should have been
 told so, untrammeled with any such condition as was done in this case.

*14 We do not think that the other assignments relied upon for a reversal
 are well taken. For the errors in the charge of the court, the judgment 
is reversed and the cause remanded.
Reversed and remanded.
Tex.Ct.App. 1883.
D. CARTWRIGHT AND J. NASH v. THE STATE.
14 Tex.App. 486, 1883 WL 8943 (Tex.Ct.App.)
END OF DOCUMENT
==========================

APPEAL from the District Court of Bastrop. Tried below before the Hon. L. W. 
Moore.
*1 At the spring term, 1881, of the District Court of Bastrop county the grand 
jury returned an indictment charging that the appellants, Dave Cartwright and 
John Nash, did, on the preceding twelfth day of February, kill and murder one 
B. F. Davis, by shooting him with pistols, etc. The case came to trial in May,
 1883, when the appellants were found guilty of murder in the second degree, 
and a term of six years in the penitentiary was assessed and adjudged against
 each of them.
The affray which resulted in the homicide took place four or five miles from 
the town of McDade, on the road leading from there to the town of Bastrop.
William Paris, the first witness for the State, testified that on the twelfth 
day of February, 1881, he saw Davis, the deceased, about half a mile from 
McDade on the road towards Bastrop. Witness was driving a four-mule wagon, 
and was riding the left-hand near mule of the team. Deceased got into the 
wagon, and seated himself about midway of it, with his right side towards 
the witness. He had a breech loading double barreled shot gun on his lap, 
or in his hands, with the muzzle pointing towards McDade; and in this manner
 he rode about three miles on witness's wagon. While going along, the 
deceased showed his cartridge belt and several cartridges to the witness. The
 cartridge shells were loaded. Witness, with his wagon and the deceased, had 
gone about the distance stated, and had got within about one hundred yards of
 James Townsend's house, when the defendants, Dave Cartwright and John Nash, 
rode up in a gallop from the direction of McDade. Cartwright rode up on the 
right hand side of the wagon; Nash in rear of it. Cartwright said "Hold up 
there;" he had a pistol in his hand. Witness then looked around to stop his
 mules, and the shooting commenced. Looking around, the witness saw Cartwright
 shoot once. There had been shots before he looked around and saw Cartwright 
shoot. Before the shooting began the witness had observed Kelton (a witness 
for the defense) working at a chimney on the east end of Townsend's house. 
Several shots were fired behind the witness. He did not see Nash until after
 the firing had ceased. Nash then had a pistol in his hand. Witness thought 
there were from three to five shots fired, probably more. Two of them struck
 the end of the wagon bed; one went through the witness's clothing, and
 another hit one of his mules, entering the hind part of its leg and coming 
out in front. Witness saw blood on the clothes of the deceased, but did not 
see his wounds.
Cross-examined, the witness stated that after the firing ceased Cartwright 
told him to take the gun from the deceased, who was rather bent over in the
 wagon. Witness took the gun from the deceased, and laid it on the ground. 
Deceased was still alive, but said nothing. The witness distinguished no 
difference in the sounds of the different shots; but on hearing read his 
sworn statement made at the inquest held the day after the killing, the 
witness adhered to it in preference to his present recollection. In that
 statement the witness had said that he did not know whether the deceased
 fired any of the shots or not; that he did not see the deceased shoot, 
"but there were sounds that seemed different shots from the pistols."
*2 Aleck White, for the State, testified that he saw the deceased in Paris's 
wagon, on the McDade road, about a mile from James Townsend's, between two 
and three o'clock in the afternoon. When witness got in about a quarter of 
a mile of Townsend's, he was passed by the two defendants, who were riding 
in a slow lope towards the town of Bastrop. Witness saw them when they were
 a short distance behind Paris's wagon. The witness heard three or four shots,
 but was so frightened that he did not see who fired them.
Doctor Holt, for the State, testified that he examined the body of the deceased
 a day or two after the homicide, and found in it two holes, which he took to be
 bullet holes made by a revolver or six shooter. One of the bullets entered just
 below the right shoulder blade and came out through the right nipple. The other
 bullet entered on the right of the back bone, three or four inches below the 
one first mentioned, and came out below the right nipple.
Tom Bishop, for the State, testified that he was constable of the McDade precinct
 at the time the deceased was killed. On the day that event occurred, the witness
 was requested by Horace Nash to execute a writ of sequestration which, at his 
instance, was being issued by the justice of the peace, for the seizure of the 
gun of B. F. Davis, the deceased. Witness replied that he was too unwell to 
execute the writ, and asked the defendant Cartwright to execute it. Cartwright 
had been in the habit of executing process for the witness when the latter was
 unable to attend to business.
W. H. Coulson, Sr., the justice of the peace, testified, for the defense, that 
on the day of the homicide he, at the instance of Horace Nash, issued a writ of
 sequestration directing the seizure of the gun which Davis, the deceased, then
 had. While the writ of sequestration was being prepared, Horace Nash and the 
defendant Cartwright were present in the witness's office. When the writ was
 issued the witness laid it on the table, and either Nash or Cartwright took 
it up from the table, and they went off together. Witness supposed that it 
was Cartwright who picked up the writ from the table. Cartwright had frequently 
executed process issued by the witness, and attended as an officer upon the 
witness's court. Witness could not say how many writs Cartwright had executed,
 nor how many arrests he had made, but knew that he had executed several writs,
 and that the people of McDade, as well as witness, regarded him as an officer.
 Witness had never specially deputized Cartwright.
Horace Nash, for the defense, testified that Davis, the deceased, on the day he
 was killed, pledged his gun to witness for a loan of sixty dollars, but took the
 gun away from where it had been left, and refused either to give it up to witness 
or to repay him the money. Witness went to Bishop, the constable, and asked him to 
execute a writ of sequestration, which was being prepared for the seizure of the gun.
 The constable said he was too sick to attend to business, and asked witness to see 
the defendant Cartwright. The constable and witness saw Cartwright, and the latter 
went with witness to the office of Coulson, the justice of the peace, when the writ
 of sequestration was issued by Coulson for the gun. Cartwright took the writ, and 
as he was starting off with it, he summoned the defendant John Nash to go with him,
 and they two went off on their horses together. The witness at that time regarded 
Cartwright as an officer.
*3 On his cross-examination, the witness stated that he demanded of the deceased the
 payment of the money, or, else, the possession of the gun which he had pledged to 
witness as security for the money. Witness told the deceased that if he did not 
deliver up the gun he would kill him, and at that time the witness held in his 
hand a gun of the defendant John Nash, but he made no attempt to use it. Neither

of the defendants were present when witness told the deceased he would kill him 
if he did not deliver up the gun. When witness and the deceased separated, the 
latter went to the hotel and got the gun, and the former went to the justice of
 the peace to get a writ of sequestration for the gun. The gun had never been 
put absolutely in witness's possession, but it was understood between him and 
the deceased that it should remain at the hotel and stand good for the money 
witness had loaned the deceased. John Nash, one of the defendants, is witness's
nephew.
W. R. Kelton, for the defense, testified that he was standing on a scaffold 
about breast high, and was engaged in putting up a chimney at the east end of 
Townsend's house, which was some fifty yards from where the shooting took place.
 Witness first heard one of the parties on horseback say either "hold up" or
 "do not shoot." Which of these expressions was used he could not remember. At
 the same moment he saw the deceased, in Paris's wagon, with a shot gun elevated,
 and saw him shoot twice. The first shot was directed towards the man in rear of
 the wagon, and the second towards the man on the right of the wagon. Then the 
witness heard other shots, and judged them to be from pistols, as these reports
 were different from those of the two shots first fired. Witness was certain that
 the deceased fired two shots first, and that no shots were fired before them. 
From where the witness stood upon the scaffold he could see the deceased plainly; 
and he saw Paris take the gun out of the wagon after the firing. Witness immediately 
went to where the firing took place. He examined the gun, but did not take the shells 
out of it. He saw that the shells had been freshly exploded or snapped. In all, 
there must have been five, six, or seven shots fired. Witness, however, saw no 
other person shoot besides the deceased.
J. H. Tanner, for the defense, testified that his attention was first called by 
hearing two shots, which, at the moment, he supposed were fired by an old negro 
who was in the habit of hunting with a shot gun in the neighborhood. Directly, 
however, other shots were fired, and witness immediately went down to where 
they were fired. The deceased was humped over in the wagon. Witness saw Mr. 
Paris take up a shot gun as witness approached the wagon. Witness took hold of 
the gun. It appeared to have been freshly fired off. Witness examined it, and
 saw that the cartridges had been fired or snapped. Defendant Cartwright told the 
witness not to let anyone take the cartridges out of the gun. Some time in the 
course of the next day the witness and several others examined the gun, and in 
it found two empty shells, one in each barrel. Witness cautioned persons not to
 handle the gun, and at night he put it in a room, and between two bed-ticks, 
and he was confident that no one handled it, except in his presence, until the
 two empty shells were taken out of it. The reports of the two shots first
 fired resembled those of a shot gun, as they were different from those 
subsequently fired. On his cross-examination, the witness said he could 
not see who did the firing, on account of a room on the end of the gallery
 obstructing his view.
*4 James Townsend testified that he was not at his home when the deceased 
was killed, but returned there shortly after that occurrence. Witness asked 
defendant Nash if he had suffered any damage in the affray, and Nash replied
 ""Only this," pointing to the sleeve of his coat, in which the witness then
 saw there were a half dozen or more holes, as if made by shot.

In rebuttal, the State examined W. G. Miller, who testified that he was county 
surveyor of Bastrop county, and, about two years ago, had received a letter from 
the deceased's father, requesting him to bring his chain and compass to Townsend's,
 where the deceased was killed. The witness went, and, on the grounds, found not only
 the writer of the letter, but the then prosecuting attorney and Mr. William Paris.
 Mr. Paris took the witness to the spot where he said the wagon was standing when 
the deceased was shot. Witness measured the distance from that spot to the chimney
 at the east end of Townsend's house, and found it to be one hundred and seventy-two
 varas on a direct line. There were no trees intervening directly on the line, but
 there were ten or twelve trees at various distances from each other and from three
 to seven feet distant from the direct line.


Although one committing a homicide by his own wrongful acts produced the necessity 
for killing in order to save his own life, it does not follow that the homicide is 
inexcusable. Consideration must be given to the wrongful acts by which the right of
 self-defense is claimed to be abridged or forfeited.


The right of self-defense is not impaired by mere preparation for the perpetration of a 
wrongful act, unaccompanied by any demonstration, verbal or otherwise, indicative of 
the wrongful purpose.
G. W. Jones and J. D. Sayers, for the appellants, filed an able brief and argument, 
reviewing the evidence, the charge of the court below, and the authorities on which 
they relied for a reversal.
J. H. Burts, Assistant Attorney General, for the State:

1. The first assignment of error is not tenable. The testimony of W. H. Coulson, to 
the effect that he supposed that appellant Cartwright was a deputy sheriff, was 
irrelevant, and not admissible. Cartwright knew, himself, that he was not a deputy
 sheriff, and if he took extraordinary process to serve, without being an officer,
 he did so at his peril; and if appellant Nash accompanied him to serve such process,
 he did so at his peril. The testimony offered and excluded did not tend to show that
 either of the appellants believed Cartwright to be an officer clothed with authority
 to execute the process, and there was nothing in the testimony to make it admissible.
 (Staples v. The State, decided at this term, and authorities therein cited, 14 Tex.App.
 136.)
2. The second assignment of error, viz, "The court erred in not charging the jury the 
law of self-defense," is not tenable, and is not sustained by the record. The court 
states to the jury, viz: "Upon self-defense or justifiable homicide, you are charged
 that any party who is so attacked as reasonably to produce a fear or expectation of
 death or some serious bodily harm, the party so attacked is justifiable in taking the 
life of the party so attacking." This was all that the law would justify the court, 
on the facts, in charging on this point. And this court will note that the charge was
 not excepted to at the time it was given, nor were additional charges asked by 
appellant. And it was neither made a ground for new trial, nor was it calculated 
to injure the rights of appellants. (Code Crim. Proc., Art. 685; Maddox v. The 
State, 12 Texas Ct. App., 429.)
*5 3. The third assignment of error is not tenable, viz: That the court erred in
 the following portion of its charge, to wit: "You are charged that any attempt 
to execute any writ or process whereby property is to be seized by persons not 
authorized to execute such process is trespass. There is no evidence before you
 that Dave Cartwright is an officer authorized to execute such process. A 
constable cannot confer such authority upon any person, nor can any magistrate,
 except in the mode pointed out by law." This charge was not excepted to when 
given. But it is correct throughout. There is but one mode of conferring authority 
on a private person to execute process from a magistrate's court, and that must be
 upon a person of good character in an emergency. (Rev. Stats., Art. 1571.) If 
executed by an unauthorized person it is a trespass, as charged by the court. 
(Erwin et al. v. Bowman, 51 Texas, 513.)
There was no evidence before the jury that Cartwright was an officer authorized
 to execute such process, and it was proper for the court to tell them so. "It 
is the province of the judge to determine when there is or is not any evidence 
as to a certain fact." (Burrell et al. v. The State, 18 Texas, 713.)
Our Supreme court has always held that where there was no evidence to a given 
point, the court might so say to the jury. (Parker v. Leman, 10 Texas, 716; Bond 
v. Mallow, 17 Texas, 636.) These are civil cases, but there is no reason why the 
rule should not apply in criminal cases, as was held in Burrell v. The State, 
above cited.
But the charge was not excepted to when given, and being objected to for the 
first time on the motion for a new trial, and not being calculated to injure 
the rights of appellants, it will not be revised by this court; and thus this
 assignment is disposed of. (Grant v. The State, 2 Texas Ct. App., 167; Maddox
 v. The State, 12 Texas Ct. App., 429.)
4. The fourth assignment of error is not tenable, which is that the court erred 
in the following portion of its charge: "If you believe from the evidence that 
the defendant Dave Cartwright, accompanied by the defendant John Nash, if acting 
with him, were armed, and did undertake to seize, by virtue of a writ of 
sequestration, a gun in the possession of B. F. Davis, then B. F. Davis had 
the right to resist such seizure, and using force enough to prevent it; and 
if you further believe these defendants, being armed, did by their conduct induce
 the said B. F. Davis to believe his property was to be taken, or to kill him,
 then the said B. F. Davis would have been justifiable in taking the life of the
 defendants; and if you believe these defendants were placed under the necessity
 of taking the life of said B. F. Davis under such circumstances as these, and 
did so kill him, then they are not justifiable, but would be guilty of murder."

This paragraph of the charge, taken in connection with other parts of the charge,
 and in view of the evidence, is correct. The parties, without any legal authority, 
with drawn six shooters, assailed deceased on the highway, for the purpose of forcibly
 taking from him his property, which, according to the testimony of Horace Nash, was 
rightfully in his possession, and ordered him to ""hold up" for that purpose. They 
were not justified in this. They were trespassers. (Ross v. The State, 10 Texas Ct.
 App., 455; Erwin et al. v. Bowman, 51 Texas, 573.) They were wrongdoers. (Staples 
v. The State, 14 Tex.App. 136.) Deceased had the right to defend his property and 
his person to the extent of slaying his pursuing assailants, and it was proper for
 the court so to instruct the jury. (Penal Code, Arts. 572, 573, 574, 575.) The 
remaining portion of this paragraph of the charge correctly states the rule, 
where the accused, by his or their own wrong, bring about the necessity for 
taking life. (Gilleland v. The State, 44 Texas, 358.)
*6 5. The fifth assignment of error is not well taken; which is that the court
 erred in the following portions of its charge: "If you believe these defendants,
 acting together, without authority of law, to execute a writ of sequestration, 
were intending to seize the property of B. F. Davis in the execution of said writ,
 and if you further believe, though armed, they made no demonstration thereof, 
nor performed any act to indicate they intended to use any arms to secure possession 
of the property, nor to do any bodily harm to the possessor, then, if the said B. F.
 Davis, in resisting such seizure, used more force than was necessary, and resorted
 to a greater violence than necessary, and by such violence and use of a deadly weapon
 threatened the life of the defendants, or serious bodily harm, the defendants under
 such circumstances would not be justifiable in taking the life of B. F. Davis, but
 would be guilty of manslaughter."
This paragraph of the charge, if not critically correct, in view of the evidence, 
inured to the benefit of appellants, and of it they ought not to be heard to complain; 
and the cause on that account should not be reversed. (Jenkins v. The State, 1 Texas Ct
. App., 346.) The charge in this respect, however, was in accordance with law. (Penal 
Code, Art. 597, subd. 2.) But, again, the charge was not excepted to when given, and 
was not calculated to injure the rights of appellants. (Code Crim. Proc., Art. 685; 
Maddox v. The State, 12 Texas Ct. App., 429.)
6. The sixth assignment of error is untenable. It is: "The testimony does not support 
the verdict in this: 1. There is no evidence whatever that the defendants or either of
 them ever attempted to seize the gun or to execute the writ of sequestration. 2. There
 is no evidence going to show that the defendants or either of them made an assault, or
 indicated an intention to assault B. F. Davis before the said Davis fired upon them 
with his gun."
The record contradicts this assignment in both of the stated particulars. It was proved
that appellants, without authority, took the writ in McDade, and followed deceased with 
the intention of seizing the gun; that they pursued and overtook deceased on the highway,
 and with drawn pistols galloped or loped up to him and commanded him to "hold up;" which
 was of itself an assault with deadly weapons. (Penal Code, Arts. 484, 485, 496, subd. 8,
 9.)
7. The seventh assignment, which is "the court erred in overruling defendants' motion for
 a new trial," is not tenable. All points raised by this assignment have been discussed 
and disposed of. This motion was correctly overruled.
8. The first special assignment made for appellant Nash is untenable; which is: "There 
is no evidence going to show that he knew his co-defendant did not have the authority 
to summon him to assist in the execution of the writ of sequestration." It was his 
duty to know that his co-defendant had the authority to execute the writ. But he has 
no cause for complaint, for the court fairly submitted to the jury the issue as to 
whether or not he knew that Cartwright had authority to execute the writ, and the 
question as to whether or not he engaged in the difficulty. There was evidence 
that he had his pistol drawn when first noticed in the difficulty.


HURT, JUDGE.
*7 Cartwright and Nash were convicted of the murder of B. F. Davis. The verdict
 was for murder of the second degree, the punishment being fixed at six years
 confinement in the penitentiary. It being the duty of the court to charge the
 law upon every phase of the case presented by the evidence, and to abstain from
 charging upon theories not supported by evidence, the appellants insist that 
this rule has been violated to their injury, and ask a reversal of the case because
 of this error.
Under the facts, or the different phases of the facts, of this case, is the charge
 obnoxious to this objection? A detailed account of the facts immediately attending 
the homicide is, by W. R. Kelton and J. H. Tanner, given as follows:
By W. R. Kelton (a witness for the defendants): Was standing upon a scaffold, about
 breast high, engaged in putting up a chimney on the east end of Townsend's house, 
about fifty yards from where the shooting of the deceased took place. I first heard
 one of the parties on horseback say, either "hold up" or "do not shoot," which I 
do not remember. Just at that moment I saw the deceased on the wagon driven by Paris,
 with a shot gun elevated, and saw him shoot twice, first in the direction of the man
 to the rear of the wagon and then in the direction of the man on the right of the 
wagon; then I heard other firing from what I judged to be pistols, as the reports 
were different from the two shots first fired; am sure the deceased fired two shots 
first and that there were no shots fired before the deceased fired; could see the 
deceased plainly from where I stood upon the scaffold; saw Paris as he took the gun
 out of the wagon after the firing took place; examined the gun, but did not take 
the hulls out, but saw they had been snapped or exploded freshly; there must have 
been five or six or seven shots altogether fired; saw nobody but the deceased shoot.

By J. H. Tanner (a witness for defendants): Was sitting on the gallery when the shooting
 in which Davis was killed occurred; my attention was first called by hearing two 
shots fired. I first supposed that they were from the shot gun of an old negro, 
who was in the habit of hunting near, but directly other shots were fired. I 
immediately went down to where the firing occurred; the deceased was humped 
over in the wagon; saw Paris take a shot gun up as I went toward the wagon; 
took hold of it and it appeared to have been freshly fired; examined the gun
 and saw that the cartridges had been fired or snapped; Cartwright told me not
 to let anyone take the cartridges out of the gun. Some time during the next 
day several of us examined the gun and found two empty shells in the gun, when
 I put it in a room at night and between two bed ticks, and am confident that 
no one handled it, except in my presence, until the two empty shells were taken
out. The sounds of the two shots fired first when the killing took place resembled 
those of a shot gun, as they were different from those afterwards fired; could 
not see who did the firing, as there was a room on the east end of the gallery,
 and between the place where the firing occurred.
*8 The facts relied upon by the State are, in substance, these: Cartwright and Nash,
 neither being an officer, left McDade with a writ of sequestration against the 
deceased for a shot gun. The deceased, B. F. Davis, had left McDade with said gun,
 going in the direction of Bastrop, and within a half mile of McDade he overtook 
the witness Paris, who was driving a wagon drawn by four mules. Davis got in the 
wagon, and when they had traveled about three miles, and were within about one
 hundred yards of the house of James Townsend, Cartwright and Nash rode up from
 the direction of McDade, in a gallop. Cartwright came up on the right hand side
 of the wagon; Nash was to the rear of the wagon. Cartwright said, "hold up there."
 Cartwright had a pistol in his hand. Paris then looked around to stop his mules, 
and the shooting commenced. Looking back he saw Cartwright shoot once. There had 
been shots fired before he looked around; * * * several shots were fired from 
behind his back. Witness Paris did not see Nash until the shooting was over. 
Nash then had a pistol in his hand. Witness thinks there were from three to five
 shots fired-- probably more. Two of the shots hit the end of the wagon bed, one
 went through his clothing, and another hit one of the mules. Davis was killed in
 this affray, being shot twice in the body.
The witness Paris, upon being cross-examined, swore that "he did not distinguish 
any difference in the sounds of the different shots;" but his evidence taken before 
the examining court being read to him, in which it appeared that he swore "that 
there were sounds that seemed different shots from the pistol," he stated that he
 would adhere to what he said in his statement made before the examining court, 
as it was the next day after the killing, when the facts were fresh in his mind,
 and his recollection was better than now.
This statement, we think, will suffice to present the main facts in the case, as
 well as the issues to be passed upon by the jury.
After charging the law applicable to murder of both degrees, the learned judge 
below, upon the issue of justifiable homicide, submitted to the jury these 
instructions:
"Upon self-defense or justifiable homicide, you are charged that any party who
 is so attacked as to reasonably produce a fear or expectation of death or 
serious bodily harm, the party so attacked is justifiable in taking the life of 
the party so attacking.
In this connection, you are further charged that whenever a party has produced 
by his own wrong acts any necessity to take human life in order to preserve his
 own life, he can not be excused or justified.
You are charged that any attempt to execute any writ or process whereby property 
is to be seized, by persons not authorized to execute such process, is trespass.
If you believe from the evidence that the defendant Dave Cartwright, accompanied 
by the defendant John Nash, if acting with him, were armed, and did undertake to
 seize, by virtue of a writ of sequestration, a gun in the possession of B. F. 
Davis, then B. F. Davis had the right to resist such seizure, and using force enough
 to prevent it. And if you further believe these defendants, being armed, did by 
their conduct induce the said B. F. Davis to believe that his property was to be 
taken, or to kill him, then the said B. F. Davis would have been justifiable in 
taking the life of the defendants. And if you believe these defendants were 
placed under the necessity of taking the life of said B. F. Davis under such 
circumstances as these, and did so kill him, then they are not justifiable, but 
would be guilty of murder.
*9 If you believe these defendants, acting together without authority of law to 
execute a writ of sequestration, were intending to seize the property of B. F. 
Davis in the execution of said writ, and if you further believe, though armed,
 they made no demonstration thereof, nor performed any act to indicate they intended 
to use any arms to secure possession of the property, nor to do any bodily harm to 
the possessor, then, if the said B. F. Davis, in resisting such seizure, used more 
force than was necessary and resorted to a greater violence than necessary, and by 
such violence and use of a deadly weapon threatened the life of the defendants, or 
serious bodily harm, the defendants, under such circumstances, would not be 
justifiable in taking the life of the said B. F. Davis, but would be guilty of 
manslaughter.
If you believe that Dave Cartwright did attempt to seize the property of B. F. 
Davis under a writ of sequestration, and if you believe John Nash was present, 
and honestly believe said Cartwright had authority to execute said process, and
 if in the proper execution thereof the said Nash's life or that of Cartwright 
became reasonably threatened, or some serious bodily harm to either, did shoot 
at said B. F. Davis to avert and prevent such threatened danger to himself or 
to Dave Cartwright, or if you believe the said Nash was present, yet if he did
 not engage therein, you will acquit him."
The first charge cited enunciates a proposition to which we cannot assent. This
 is the proposition: That whenever a party has produced by his own wrong acts 
any necessity to take human life in order to preserve his own life, he cannot 
be excused or justified.
What character of wrong acts must produce the necessity to take life? Suppose 
the wrong acts were not calculated to produce the necessity, but did have this
 effect? Again, suppose the wrong acts were not intended to "produce the
 necessity" by the wrong-doer? Would the party guilty of the "wrong acts" be
 guilty of culpable homicide, who, to save his own life, takes the life of 
another under the supposed cases?
Just here it is necessary for us to consider the nature or quality of the act,
 the doing of which will so far abridge one's right of self-defense that if he
 kill another, although to save himself from death or great bodily harm, he 
will yet be guilty of a felonious homicide in some of its degrees. It would be
 quite difficult to lay down a general rule by which all wrongful acts could be
 tested and adjudged sufficient or not sufficient to deprive one of the complete 
right of self-defense. This we will not attempt, but will at present confine
 ourselves to the conclusions reached by our examinations of quite a number of
 cases. From these cases we conclude that the doing of the following acts is 
held so far to abridge a man's right of defense that if he therefore kill another
 he cannot be acquitted of all crime:
1. Using provoking language or resorting to any other device in order to get 
another to commence an assault so as to have a pretext for taking his life, or
 to have a pretext for inflicting on him bodily harm. (Stewart v. The State, 1
 Ohio, 66; Adams v. The People, 47 Ill., 376.)
*10 2. Provoking another for the purpose of bringing him into a quarrel, so that
 an affray be caused. (Selfridge's case, H. & T. on Self-Defense, p. 24.) But in
 Selfridge's case, though this proposition is stated generally, it is most clearly
 stated that no words nor libelous publications, however aggravating, will deprive
 one of the right of defense if in consequence of the same he is attacked.
3. Agreeing with another to fight him with deadly weapons. (State v. Hill, 4 Dev.
 & Batt., 491.)
5. Going to the place where another is, with a deadly weapon, for the purpose of 
provoking a difficulty, or with the intent of having an affray. (The State v. Neeley,
 20 Iowa, 108; The State v. Benham, 23 Iowa, 154; Vader v. Commonwealth, 12 Gratton
, 717.)
The doing of the acts contained in the former illustrations will deprive the party
 of the right of a complete or full defense.
There is, however, another very important question presented in the fifth proposition.
 Suppose that a person should go armed to the place where another is, intending to 
provoke a difficulty, but says nor does anything to the other at all, or says nor 
does anything to the other tending to show that his purpose was to provoke him to 
a difficulty. Will the intent with which he went, though nothing said or done by 
him was intended or calculated to provoke the other, deprive him of the right of 
self-defense? By consulting the cases we will find that there was some act or 
word done or said tending to provoke the other.
Let us take the Neeley case. Cassady, the party killed, and Neeley, lived on 
adjoining farms, the former with his mother. The parties were not on friendly 
terms. The fences around Cassady's farm were bad. Neeley's stock broke through
 occasionally and were injured by dogs or otherwise. On the morning of the day
 of the homicide, Neeley, believing that his hogs were being injured by dogs, 
went with his gun to the field where some children belonging to the Cassady 
family were, and shot the dogs. After this and late in the afternoon, hogs were
 again heard in the field, apparently being worried by dogs. Neeley hurried 
there with his gun, and pursued the sister of Cassady and the children through
 the field in the direction of the house. On their return home, upon telling 
their story, Cassady, with his mother and sister, left the house and went down
 to the field, having with him a small rifle. Neeley in the meantime had left 
the field and gone in an opposite direction from the other parties, perhaps a 
distance of sixty or seventy rods. The other parties were passing along a path 
inside of the farm. At this time, some of the witnesses say that a shot was fired
 in the field, while others heard nothing of it. Neeley, either because he heard 
a shot or saw Cassady and his mother and sister, or for some other cause not
 developed, turned and walked back to where they were. When within a few feet
 of them, and after a few words had passed between them, the prisoner shot and
 killed Cassady.
*11 According to the testimony of some of the witnesses, who were some distance
 off, there was first heard the sharp crack of a rifle, then, instantly, the hoarser 
sound of a shot gun, and then, almost as quick, a third shot like the second. 
Neeley fired a small double barreled shot gun; and the third shot was at a dog,
 according to some of the witnesses, and, according to others, at Mrs. Cassady.
The theory of the defense was justifiable homicide.
Under this state of facts, the court charged the jury that "If the jury believed,
from the evidence, that the defendant brought on the difficulty, by voluntarily 
returning to the vicinity of the deceased with a deadly weapon, for the purpose of
 provoking a difficulty, his plea of self-defense would be of no avail, and in that
 case it would make no difference who fired the first shot." Under the surrounding 
facts of this case, this charge was correct. Neeley had shot the dog; had chased, but 
a short time before the killing, with a gun, Cassady's sister and the children from 
the field; and when he approached them the last time, he did not walk in an ordinary
 gait, but "approached rapidly." These acts, leaving out of the case what was said 
in the words which passed between him and Cassady just before the killing, were not
 only intended, but were evidently calculated to provoke a difficulty; and Neeley 
could but have known that an affray would be the result when he rapidly returned 
with his gun to where these folks were.
Benham's case was as follows: Shepard, the deceased, was at the creek, loading sand.
 Benham came up on the opposite side with a gun, and commenced talking about cattle. 
He said cattle were troubling him, and if they continued he would dog them. Shepard
 told him to dog them as much as he pleased, but not to cross the creek and drive 
them off with a horse. Benham told him that he, Shepard, had shot cattle, and now 
it was his turn. Shepard told him he had shot no cattle, and if he told him so 
again he would whip him. Benham repeated that he had shot cattle, and he, Benham
 would shoot too; and Shepard started across the creek towards him. As he was 
almost across the creek Benham met him with a gun, and pointed it at his, 
Shepard's breast. Shepard sprang out of the water, took hold of the gun to 
push it down, and it was discharged into his thigh. This statement is that 
which was relied upon for conviction.
In commenting upon the case, Judge Dillon makes this remark, bearing upon 
the question in hand: "Nor can the defendant get the benefit of the plea of
 self- defense if he sought the deceased with a view to provoke a difficulty, 
or to bring on a quarrel;" and he cites Neeley's case in support.
Here again we find that there was also something else besides going to the place
 where the person was, with a deadly weapon, for the purpose of provoking a 
difficulty. Benham evidently desired a difficulty, and did that which was 
calculated to produce one. Hence his acts, coupled with what he said to Shepard,
 were very properly held to be such provocation as would, when forced to save his
 life, defeat his right to a perfect defense to the homicide committed under such
 circumstances. But Neeley's case furnishes no support to the latter part of Judge 
Dillon's proposition, to wit: "or to bring on a quarrel." This proposition is in 
direct conflict with Selfridge's case, and if it has any support from any source 
we have not been able to find it. As stated, we do not believe it sound. We are of
 the opinion that Judge Dillon had reference to the principle enunciated in our 
first proposition, namely, "using provoking language," or resorting to any other
 device, in order to get another to commence an assault so as to have a pretext 
for taking his life. This principle we think sound and just. He who resorts to 
such means, or to any means, to provoke a difficulty, with a view to take the 
life of his victim, is not only guilty of murder, but murder of the first degree.

*12 Can this be said of a person who merely goes to another with intent to provoke 
a quarrel? We think not, unless the ultimate object or intent is to take the life
 of the party, or commit a felonious assault in some of its grades. In Selfridge's
 case it was held that: "No words spoken, or libelous publications, however aggravating,
 will compromit his complete right of defense." This should be modified; for we 
have seen that if the words were spoken with the intent to provoke an assault for
 the purpose of having a pretext for taking his life, he would be guilty of murder. 
There is a vast difference between this proposition and that stated by Judge Dillon,
 to wit, ""to bring on a quarrel." While we might cite a hundred cases bearing upon 
this subject, but little could be learned of value so long as the principle which 
underlies the whole question is not correctly understood.
What then is the principle? In Broom's Legal Maxims, page 255, it is said: "A man 
may not take advantage of his own wrong to gain a favorable interpretation of the 
law. He seeks the law in vain who offends against it." It is upon the plain principle
, said Wright, Judge, in Neeley's case, "that one can not willingly and knowingly 
bring upon himself the very necessity which he sets up for his defense." It would 
follow, therefore, that the conduct of the party must show that he knowingly and 
willingly used language, or did acts which might reasonably lead to an affray or 
a deadly conflict; and that something besides merely going to the place where a 
person slain is, with a deadly weapon, for the purpose of provoking a difficulty,
 or with the intent of having an affray, is required in order to constitute such 
wrongful act. But it is not necessary that the additional acts or words should be
 done or said at the time of the homicide. (Neeley's case.) The former conduct of 
the defendant towards the party slain, with all of the attending circumstances 
occurring before, and in connection with the fact that he went to the person slain, 
and his language and bearing toward him at the time of the homicide, may, and 
frequently do, constitute that character of provocation which estops defendant
 from pleading the necessity which otherwise could be interposed.
But, reduced to the exact proportion of this case, the question is this: Suppose
 that a party without authority, not being an officer, rides rapidly up to another, 
with pistol in hand, intending to take his gun or other property by virtue of a writ,
 but says nothing, nor does any act, tending to show an immediate intention to 
execute the writ; will he be denied the right of defense, if he kill to save his
 own life? Will the fact that he thus approached the other, with pistol in hand,
 compromit his right of complete defense? He is armed, has the intent, and rapidly
 approaches, but says nothing nor does any acts tending to show the immediate 
intention to consummate the wrongful act.

*13 Bearing directly upon this question, Mr. Bishop says: "Between preparation for
 the attempt and the attempt itself there is a wide difference. The preparation 
consists in devising or arranging the means or measures necessary for the commission 
of the offense. Attempt is the direct movement towards the commission, after the 
preparation is made. To illustrate: A party may purchase and load a gun, with the
 declared intention to shoot his neighbor, but, until some movement is made to use 
the weapon upon the person of his intended victim, there is only preparation and 
not an attempt." (Bish. Crim. Law, vol. 1, 764.)
"The movement to use the weapon upon the victim need not be the last proximate act
 prior to the consummation of the offense. If it be the first of a series of steps
 towards the execution--a commencement of execution--it will suffice." (Id.)

Now it must be borne in mind that there was no prior conduct or previous difficulties
 or ill feeling between any of these parties, connecting itself with the acts 
immediately attending the homicide, as was the case in the Neeley case. Hence,
 can the acts of these defendants at the time of the homicide, without color from
 any other source, be held such provocation as will deprive them of the right of 
defense? Are they such acts (standing alone) as will in law have this terrible 
effect? Are defendants or either of them by these acts to be adjudged felons, 
although they took the life of Davis to save their own? We think not.
As before intimated, immediate acts must condemn; for there is a perfect want
 of any other acts, malice or bad blood. In fact, it was the merest accident 
that Cartwright was sent with the writ, or that Nash was summoned by him. 
Davis did not know that they had the writ, but from his position in the wagon
 and the manner in which he constantly held his gun, he was evidently expecting
 some one in pursuit. And just here it may be observed that his attitude in the
 wagon, and the position in which he held the gun, may very satisfactorily account
 for Cartright having out his pistol.

There being no such provocation as would compromit defendants' right of defense,
 and there being no attempt to execute the writ, was it proper for the learned 
judge below to assume in his charge these phases of the case? We are clearly of
 the opinion that it was not. The evident effect of such a course is to impress
 the jury with the belief that the acts of defendants were such provocation, and
 also that their acts constituted an attempt to seize his gun. With such belief 
the jury could not have consistently acquitted defendants or either of them. If
 these defendants, whether officers or not, charged down upon Davis and commenced
 firing upon him, they are guilty of murder at least; and if the jury so believed,
 they should have convicted them of such offense. But, on the other hand, if Davis
 commenced the battle, and defendants fired in their complete self-defense, they 
should not be convicted, and the jury should have been told so, untrammeled with
 any such condition as was done in this case.

*14 We do not think that the other assignments relied upon for a reversal are well 
taken. For the errors in the charge of the court, the judgment is reversed and the
 cause remanded.
Reversed and remanded.
Tex.Ct.App. 1883.
D. CARTWRIGHT AND J. NASH v. THE STATE.
14 Tex.App. 486, 1883 WL 8943 (Tex.Ct.App.)
END OF DOCUMENT

Return to Main page