Pollock v. State , 32 Tex. Crim. 29 ( 1893 )

Appellant and John Moody were charged by information with fighting together in a public place. A severance having been obtained, appellant was placed on trial, waived a jury, submitted his case to the court under a plea of not guilty, and was fined in the sum of $1. A motion for a new trial having been overruled, he excepted, and gave notice of appeal.

In substance, the evidence discloses a prior trouble between the parties, and on the occasion of the affray in question they were returning from a picnic and game of baseball. While on the public road, in a crowd, the trouble was renewed by Charles Moody. Defendant proposed to recall the insulting remark made to John Moody during their previous difficulty, provided Moody would do as much in relation to an insulting remark made by him to defendant. Defendant testified, in substance, that Charles Moody remarked, that "I had to fight, or take back what I had said. I told him I was willing to do so, if John Moody would recall his remarks. When I saw that he was not going to let me off without fighting, I got out of my gig. John then came to where we were, and asked me if I had called him a son-of-a-bitch. I informed him I had. He then struck me, and we fought. * * * I did not want to fight. When Charlie Moody came up to my buggy and said I had to light, and there was no way for me to get away from them, I got out of my gig. Charlie and I talked pretty rough. John came, repeated our conversation, in which I had called him a son-of-a-bitch, and when I said I had called him a son-of-a-bitch he struck me, and I struck him." The fighting occurred in a public place, and in a crowd of people. The testimony of all the witnesses is substantially the same as that given by defendant.

The information was drawn under the provisions of article 313 of the Penal Code, which reads as follows: "If any two or more persons shall fight together in a public place, they shall be punished by fine not exceeding $100." In order to constitute this offense, there must be fighting between two or more persons, and it must occur in a public place. Penal Code, art. 313; Saddler v. The Republic, Dall. Dig., 610; Habel v. The State, 28 Texas Cr. App., 588; 1 Bish. Crim. Law, sec. 535; 2 Bish. Crim. Law, secs. 1, 2, and notes. It is not essential to this offense that the difficulty should be by consent of the parties concerned. Same authorities. "Mere words are not a fighting, within the definition of 'affray;' and if one, by insulting language, provokes another to attack him in a public place, but offers no resistance to the attack when made, he does not become guilty of this offense. If he were himself ready to fight, while the other gave the first blow, it would be otherwise." 2 Bish. Crim. Law, sec. 2, and notes; The State v. Sumner, 5 Strob., 53; The State v. Perry, 5 Jones (N. C.), 9. Looking to the evidence, the defendant, though reluctantly, entered the combat with some zeal, was "rough" in his remarks, and vigorous in his efforts during the fight; and the fighting occurred in a public road. In this attitude of the case, it is immaterial who struck the first blow, for both are guilty of the affray. Self-defense was not an issue in the case, and defendant could not justify his action on the ground that he did not strike the first blow.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.