Brown v. State
38 Tex. 482
Tex.
1873
Check Treatment
Walker, J.

There is some novelty in this case.

Where a defendant in a prosecution for felony is taken ill on the trial, and the court is satisfied, by the opinions of physicians or otherwise, that he is too ill to be present in open court at every stage of the trial, the cause should either be temporarily continued to await his convalescence, or a, juror should be withdrawn and the cause continued for the term. The accused should not only be within the walls of the court house, but he should be present where the trial is conducted, that he may see and be seen, hear and be heard, under such regulations as the law has established.

Under our Code of Criminal Procedure it is competent, on the trial of a felony, for counsel to do certain things in the presence of the defendant, but these things strictly pertain to professional acts ; but that article of our code (3070, Paschal’s Digest) which provides that a jury may be allowed to separate, by consent, in charge of an officer, limits the consent to the defendant alone, so far as he is concerned. It is not an act, either by practice or by our code, brought within the province of counsel. Had the prisoner .consented to the separation of the jury contemplated „ by the statute, he would not be bound in this case, for the separation which took place was not such as is contemplated by the law. When a separation takes place by the consent of the accused, every juror should be under the protection and control of an officer, that no communication may be had with other persons in any wise touching the cause on trial. It is the practice of the courts to permit a juror to retire from the panel for a temporary or necessary-cause, and this practice grows out of necessity; but the court should be watchful and *486vigilant to see that the law is executed which forbids all improper conduct on the part of jurors, and all inter-meddling or tampering with them by parties interested in the suit, their friends, or other persons.

Exception is taken to the charge of the court in the assignment of errors ; but no special exception was taken on the trial; yet in a felony case it has been the practice of this court to examine the general charge in order to determine whether the accused has been fairly tried. (Villareal v. The State, 26 Texas, 107; and 23 Texas, 557; 27 Texas, 146, 438, 765 ; 28 Texas, 711; 29 Texas, 500; 31 Texas, 608, 575; 30 Texas, 472 ; 33 Texas, 660.)

The court will not, however, in cases of misdemeanor, reverse a judgment on account of the insufficiency or error of the general charge, unless an exception be taken on the trial. (24 Texas, 154.) In such cases a written charge is not required by the District Court, but in capital cases the court will look at any violation of Article 3059, Paschal’s Digest. The charge of the court in this case may have misled the jury. There was no evidence of threats made on condition that the deceased should first be assailed, and the presentation of this question to the minds of the jurors may have led them into an erroneous conception of what the evidence in the case really was. It was error to instruct the jury on the law of adequate cause, which would reduce murder to manslaughter, that the four provoking causes enumerated in Article 2254 were the only causes which could reduce murder to manslaughter. The maxim, expresio unius est exelusio altering, cannot apply to Article 2254. By Article 2252 the Legislature has defined the words “adequate cause.” By the expression “adequate cause” is meant suchas would commonly produce a degree of anger, rage, resentment, or terror, in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. It *487is unfortunate that bad and vicious men can and do find many more means of outraging and insulting others of ordinary temper than those four enumerated in Article 2254. The language employed by the deceased was grossly profane, vulgar and abusive. It was applied to the appellant in the presence of his friends and neighbors; it was such language as in most instances, if applied to men of .ordinary temper, was calculated to produce anger, rage and resentment.

It was error in the court under our law (Arts. 2203 and 2204, Paschal’s Digest) to refuse giving the charge as asked, concerning the treatment of the wound by the physician, from which the deceased is supposed to have come to his death. Our law undoubtedly changes the rule of the common law, the theory of which was that he who caused the first injury should be held guilty, upon the theory that without the first injury no other would have followed, as resulting from the first.

The judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.