75 S.W. 512 | Tex. Crim. App. | 1903
Lead Opinion
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.
The evidence shows that deceased was the father of appellant, the *151 family consisting of deceased, his wife, two grown daughters, a minor son, and appellant. Their home was situated in the suburbs of Belton. Appellant was an unmarried man, about 30 years of age, and had lived with his father all of his life. Deceased left his home on Thursday morning and did not return until Friday morning, when the homicide occurred. The evidence shows that deceased drove home in a buggy, and called his younger son, Darling, to get the mail he had brought from town. Appellant replied that Darling was sick, and that he would come and get the mail. He went out to the gate for the mail; the altercation occurred which resulted in the homicide, deceased being on the outside of the wire fence and appellant on the inside. During the altercation appellant stabbed deceased in the left arm with a dirk knife the knife also cutting through the vest and striking a rib. The knife penetrated an artery and deceased died from the loss of blood. The theory of the State was that appellant bore some grudge against his father and was angry because deceased had stayed away from home over night; that when he drove up home and appellant came out he asked him why he had stayed out the night before, and deceased said he had stayed all night with his friend Yarbrough. Appellant called him a damn liar, and deceased then hit at or struck him, and appellant then cut deceased with his knife. Appellant's theory was that he went out to where deceased was to get the mail, and as he walked up to the fence he asked deceased where in the hell he had stayed last night? Deceased replied it was none of his damn business. Appellant replied that it was and to this deceased said, "You are a damn lying son of a bitch," and then started towards appellant, who was in the meantime stooping down picking up the papers which deceased had thrown over in the yard. Just as appellant raised up deceased grabbed at him with his left hand, caught him in the collar, and struck at appellant with a knife; and appellant then drew his knife which he had in a leather strap buckled at his belt, and struck deceased a single blow in order to get loose from him; that he cut deceased in order to prevent him from cutting himself.
This is a sufficient statement of the facts in order to discuss the assignments of error.
Appellant made a motion for continuance on account of the absence of Mrs. McDonald, who had been subpoenaed, but at the time of the trial was shown to be sick and unable to attend court. Appellant alleged that he could prove by said witness that she was well acquainted with the family of deceased, and the conduct and general bearing of deceased and his son (appellant) toward each other, and that they were in the habit of using rough language in ordinary conversation between each other, which did not show any animus. This testimony was particularly desired on the part of defendant in order to qualify and explain the meaning and and animus of appellant toward his father immediately after the difficulty, when the expression was proven on the part of the State, to the effect that when some one started to give deceased some whisky, and appellant said: "God damn it, give it to him straight; he is used *152 to it." "That the witness was present and heard this statement; that said witness, knowing the habits and conduct of appellant and deceased toward each other, would testify that this had no particular meaning, indicating malice or ill will of appellant toward his father." We do not believe that said testimony was material, even if it be conceded that it was admissible. It is not pretended that said witness had ever been present on any previous occasion when deceased and appellant had a difficulty; and the testimony here offered was in connection with a difficulty. The parties had just had a fight, and deceased had been stabbed with a knife by appellant, and a number of witnesses were present on the occasion when the expression was used, and any witness who was present on the occasion when the expression was used would have been qualified to state the tone of voice that accompanied the expression, and the circumstances attending it. It does not occur to us that a witness who may have known how appellant and his deceased father ordinarily treated each other would have been qualified to testify as to how this expression was used, whether angry or not, any more than another witness who was not as familiar.
Appellant made a motion to change the venue on the ground that so great a prejudice existed in Bell County against appellant as that he could not expect a fair and impartial trial. This was controverted on the part of the State. Some fifty witnesses were examined, the witnesses covering almost every section of Bell County. On the part of the appellant, some twenty-seven witnesses testified that the matter had been talked of in the county, and it was generally known that appellant had killed his father, and that prejudice existed against him on that account to such an extent as that he could not expect a fair trial in said county. Some of the witnesses stated that the people said he ought to be hanged for the offense; and others that he ought to be punished severely. On the part of the State, some twenty-two witnesses rebutted appellant's testimony, and stated that there was no prejudice in the county against appellant, and that he could get a fair and impartial trial. On this testimony the court overruled appellant's application to change the venue, and proceeded with the trial, which resulted in a verdict of murder in the second degree, the penalty assessed being confinement in the penitentiary for a term of twenty-five years. We take it that the matter of change of venue was within the sound discretion of the court, and the court was justified in finding against appellant on that issue. Renfro v. State, 42 Tex.Crim. Rep.. The writer of this opinion believes that this discretion can be tested by the result reached in the trial of the case; and looking at that result, it was demonstrated appellant could get a fair and impartial trial in said county.
Appellant contends that this cause should be reversed on account of the action of the court in the impanelment of the trial jury. The bill of exceptions shows that the juror Bailey (who was one of the veniremen), on his voire dire, stated that he had heard appellant had killed his father, and that he was indicted for said offense, and that the burden of proof *153 would be on defendant to show his innocence of said offense. This juror on his further examination by the State, and by the court, qualified this statement; and said, in effect, that he did not mean to say appellant would have to prove his innocence before he would acquit him, and that he could try him fairly and impartially on the evidence, and give him the benefit of the reasonable doubt, as he would any other person. This juror was challenged for cause by appellant, and the challenge overruled, when appellant peremptorily challenged him. As to the juror Kuschke, who stated in effect as did the juror Bailey, except that he did not qualify his statement to the same extent as did Bailey, the court held him to be a competent juror, when challenged by appellant for cause; and appellant then exercised on him a peremptory challenge. At the time this challenge was exercised, some eight jurors had been impaneled, and appelant did not exhaust his peremptory challenges. Subsequently, when the tenth juror was impaneled, appellant had exhausted his peremptory challenges, when the court reconsidered his ruling with reference to the juror Kuschke, holding he was disqualified, and gave appellant another challenge. This additional challenge appellant exercised, and the jury was afterward completed, appellant having exhausted his peremptory challenges before it was completed. The bill does not show that any objectionable juror was afterward placed on the jury. The court certifies that when the State had accepted the twelfth juror, "defendant's counsel simply said defendant takes the juror." The rule being that before an appellant can avail himself of the action of the court holding a juror was qualified when he was not, and thus forcing appellant to challenge said juror, the bill must show some objectionable juror was forced on appellant. We do not understand by this that the jurors forced on appellant must be subject to a peremptory challenge, but their examination must show some degree of disqualification, as, to wit, the formation of some sort of opinion as to the guilt or innocence of appellant, though not a disqualifying opinion. See Hudson v. State, 28 Texas Crim. App., 323; Holland v. State, 31 Tex.Crim. Rep.. For further authorities see White's Ann. C.C.P., art. 673, sec. 750.
By bills of exception numbers 6 and 8, appellant proposed to prove by Susie Connell and Mrs. Connell specific acts of violence and ill treatment on the part of deceased towards other members of the family than appellant. Among other things, it was proposed to prove by Susie Connell that deceased had assaulted her with a knife on one occasion, and appellant never offered to interfere. And by Mrs. Connell that on one occasion deceased drew a knife on her and threw it at her and hit her on the head, and frequently assaulted her and her daughters. Unless these specific acts of violence were directly involved in the alleged homicide and grew out of it, they were not provable. This was not like the case of Childers v. State, 30 Texas Crim. App., 160, invoked by appellant. In that case the parties were strangers to each other, and appellant was not acquainted with the general character and reputation of deceased; but he did know the specific act or declaration of deceased with regard to *154 himself, which was provable. In this case the parties were well acquainted with each other; and if deceased bore the reputation of being a dangerous man, and if that fact had any bearing on the case, it could be proved by evidence of general reputation. The general doctrine being that specific acts of violence, and the details thereof, are not admissible in evidence. Heffington v. State, 41 Tex.Crim. Rep.. Besides this, as shown by the court, all testimony offered was admitted as to the state of feeling between deceased and defendant, and their conduct toward each other; and it was further admitted that, in the opinion of the witness, deceased, when at home and in his spells of anger, was a man of violent and dangerous character among the members of his family. Certainly this character of testimony was more valuable to appellant than testimony of specific acts, for as we understand from the bills, no evidence of any specific act resulting in injury to any member of the family was offered. It is a little remarkable that a man could have a dangerous character in his family, who had lived with his family for from twenty to thirty years and had never inflicted any serious injury upon any member of the family. The most, perhaps, to be shown was that he once threw a knife at his wife and hit her on the head, and no particular injury was sought to be shown. Aside from this, we fail to see what part of the difficulty in which the homicide was committed this character of testimony would serve to illustrate. No threats had been proven by deceased against appellant. We do not understand the doctrine of being a dangerous man to apply, in a conffict of testimony, in order to show who was the aggressor. Here the testimony was of a positive character, and a mere conflict of witnesses as to the particulars of the difficulty; the State's testimony showing that deceased, when abused and cursed by appellant, struck him with his fists; whereas appellant's testimony indicates that he caught him by the collar with one hand and assaulted him with a knife in the other. We fail to see how the specific acts that appellant proposed to show — at most only indicating a turbulent, quarrelsome and overbearing disposition — were calculated to shed any light on this difficulty. Appellant proposed to prove that in all deceased's disputes and altercations with other persons he would never admit that he was in the wrong, but would always claim that he was in the right. We believe that this characteristic attends most people, but it is no reason why the same should be admitted in evidence.
Appellant, after showing by Mrs. Connell that deceased cursed her on Wednesday night (or more particularly on Thursday morning after midnight) and threatened to throw a lamp at her, and that this was in the hearing of appellant, who was in the next room, offered to prove by Mrs. Connell that this was no unusual conduct on the part of deceased. This testimony was offered to show that this incident did not cause the difficulty in which deceased was slain; that is, appellant had introduced this specific act of ill treatment of deceased towards defendant's mother, and then proposed to eliminate it by showing it was not the cause of the difficulty and had no bearing on it. If appellant was not satisfied with the *155 proof of this specific act he might have made a motion to have the court eliminate and strike it out. But we do not concur in the view that he could introduce this act, and then undertake to show that it had no bearing on the case. Besides, the court permitted appellant to prove any words or conduct between defendant and deceased; and he was also permitted to prove by two members of his family that deceased, when at home among his family and in one of his spells, was a violent and dangerous man. As stated before, we do not find in the testimony regarding this homicide any particular phase of case in which the disposition of deceased toward other members of his family would shed any light. The only essential difference between the testimony of the State and defendant as to what happned during the difficulty is whether deceased assaulted appellant with his hands and fists merely in the first instance or drew a knife on him. We fail to see how the fact that deceased threw a lamp at his wife a few nights before the homicide, and that this was not unusual conduct on his part as to members of his family, would serve to illustrate the evidence in this case, or strengthen appellant's testimony that deceased assaulted him with his knife instead of his fist.
What is said with reference to this bill also applies to appellant's thirteenth bill of exceptions. In this bill it was shown by Mrs. Connell that deceased frequently became enraged at defendant, and would attack him with knives, axes, or anything else at hand. Appellant then proposed to prove deceased's conduct was the same toward other members of the family. It will be seen from this bill that the fullest latitude was given appellant to show specific acts of violence by deceased toward defendant during thirty years in which he lived with his father and under his own roof. While the admission of this testimony was certainly liberal toward defendant, it afforded no reason why the record should be incumbered with other matters having no legitimate bearing upon any question in the case. If defendant was in any danger at all from attack being made by deceased, it was an actual danger, and not apparent. But if the testimony would serve any purpose, it occurs to us that it would tend to show that even if deceased had a knife at the time, appellant must have realized that he stood in no danger from it, for, if during all the years deceased had so frequently assaulted appellant with knives and axes, without any injurious results, it would indicate that on this occasion there were no reasonable grounds for any apprehension of danger.
It is contended that the court committed an error in permitting a State's witness to refresh his memory by a copy transcibed from his stenographic notes on a former hearing. The nature of the testimony is not given; but if it were, there would be no error in this action of the court.
Appellant strenuously urges that the court committed an error in allowing the State's witness, Ike Grubbs, to testify as to an alleged confession of appellant, on the ground that appellant had been arrested at the time and had not been cautioned. The bill shows, in effect, as follows: *156
That said Grubbs was deputy sheriff, and that after he learned of the difficulty, he, in company with Sparks, another deputy sheriff, both known by appellant to be such, went to the house of deceased for the purpose of making an investigation and an arrest, if the facts justified it. They reached the premises after night, and after deceased had been removed from the place where he had been cut into the house; that he and Sparks went in to find defendant. He went around the house the back way, Sparks going the front way; that he found defendant somewhere about the back gallery and asked him what the trouble was about. Defendant replied that it was not anything much; that he was sorry they had heard of it, and stated that he supposed they wanted a little bond. After this he stated to defendant: "Let's go to the front gate, where Mr. Sparks is." When they reached the front gate, where they found Sparks, witness asked defendant several times to tell him how the difficulty occurred. Defendant at first refused, saying it did not amount to anything; but finally made the following statement: "His father came home that evening and drove up on the north side of the house and called to his little brother to come and get the papers. Defendant said that he answered deceased that his little brother was sick, and that he would come and get them. That he walked out and went up to the fence and asked his father `Why the devil did you lie out last night?' or, `Why the devil you didn't come home last night?' or something like that. And deceased said: `It is none of your business, you damn son of a bitch,' and struck him (defendant). Deceased drew his knife and started over the fence at defendant, and while deceased was up on the fence, defendant cut him, but that it did not amount to anything, just the scratch of a penknife." In this connection, the witness stated that he did not tell defendant he was under arrest, but would not have allowed him to depart; that he did not arrest him until Sparks had gone into the house and made inquiries as to the condition of deceased; that the reason they went around the house when they first went there was that they saw some one leaving and did not know but that it might be defendant, and they did not want him to leave until they had investigated, as they might want to arrest him. Appellant objected to this testimony, on the ground that defendant was under arrest at the time and had not been warned that any statement he might make could be used against him." It has been held that a statement or confession of an accused can not be used against him, although he had not been formally arrested by the officer, if he believes himself under arrest at the time he makes the statement. On the contrary, although the officer would not permit a person to depart, yet if a party does not reasonably believe himself to be under arrest, his confession can be used against him, though he has not been warned. The doctrine being that, if the testimony indicates the party reasonably believes or is conscious that he is under arrest, a confession made, unless he has been warned under the statute, can not be used against him. Nolan v. State, 9 Texas Crim. App., 419; Craig v. State, 30 Texas Crim. App., 619; Jones v. State, 44 Texas Crim. *157
Rep., 405. The court below held that the circumstances reviewed in this bill did not indicate that appellant, at the time he made the statement, believed he was under arrest. In Jones v. State, supra, the facts were much stronger than in this case. There defendant went to the sheriff for the purpose of surrendering, and had given his pistol to the sheriff before he made the statement. In Craig v. State, the statement of the circumstances, as found in the opinion, shows that the officers, three in number, on horseback, one of them armed with a gun, were on their way to appellant's house for the purpose of arresting him. When within two hundred yards of the house, they saw him coming along the road leading to Smith's place. They rode up and spoke to him. Defendant stopped. They did not make any arrest or tell defendant he was under arrest, but they stated that they would not have permitted him to leave, if he had attempted to do so. At this point appellant made a confession. How it came about is not stated. The court holds that the circumstances did not show that appellant was conscious of an arrest. In Nolen's case, supra, the officers, Walk, Tomlinson and Caruthers, being in pursuit of Nolen, reached Camp's house between daylight and sunrise. Nolen was on the gallery, dressed, and putting on his boots. One of the officers passed to the rear of the house, and the other two stopped on the gallery where Nolen was. It seems that the officer who passed to the rear got the saddlebags of Nolen, which contained his pistol and a sack of money, securing the same. It does not appear that Nolen knew they had secured his pistol and money. At this juncture one of the officers accosted Nolen, telling him that they were in pursuit of stolen horses, and wished to examine his caballado; to which he made no objection. The officers made no formal arrest, but stated that they would not have allowed Nolen to go away and they regarded him as a prisoner, but did not think he so regarded himself. The officers were armed and Nolen was unarmed. While there a young man came by and asked Nolen to come and look at some mules, to which he replied that he did not have time to go that trip, as he had to go with the parties to his caballado. Under this state of facts the lower court held that Nolen did not believe himself under arrest. However, the Court of Appeals took a different view of the question, holding that it was not important that defendant should have been informed, in so many words, that he was under arrest; that the facts disclosed by the evidence showed very clearly that the pursuing party, at the time they came upon Nolen, showed that they had secured him, and would not have permitted him to escape if he had attempted, and that his confession subsequently was not admissible against him, as he was unwarned. We do not believe the facts in this case are as strong as in Nolen's case. True, the officers were known by defendant to be such, and as soon as he met Grubbs he told him he supposed he wanted him (defendant) to give a little bond. However, the officer stated no, that they had come to investigate, and merely asked him to accompany them to the front gate where Sparks *158
was. After going there in company with the officer and after being asked two or three times about the difficulty, he at length made the statement. We believe the judge below was authorized to find, as he did, that appellant was not conscious of being under restraint. See Holmes v. State, 32 Tex.Crim. Rep.; Gay v. State, 49 S.W. Rep., 612; Stayton v. State,
Appellant questions the action of the court permitting the witness J.C. Yarbrough to contradict and impeach Mrs. Jane Connell. In order to present this matter, we copy the bill of exceptions in full, as follows: "After the witness Mrs. Jane Connell had testified in chief, on behalf of defendant, she testified as follows, in answer to the following questions propounded to her on cross-examination by the district attorney. (The defendant having made no inquiry, and the witness having given no testimony concerning the matters mentioned herein below, as a part of her direct examination, except on direct examination had testified that the feelings between defendant and deceased had always been kind.) `I never heard John [defendant] make any threats against his father. I know J.C. Yarbrough. He stayed with my husband, after he was sent for, until the next morning; sat up all night and went home the next morning; and he came back and was there the next night, and was there when he died, I think. There is a little back hall in our house, used as a dining room.' Questions by the State: `I will ask you if you did not have a conversation with Mr. Yarbrough about this matter, about 10 or 11 o'clock the night your husband was cut, in that place there? Didn't he call you to one side and ask you how this trouble came up, and what caused the trouble, and didn't you reply: `John said if the old man cursed him again, I will cut his guts out?' To which the witness answered: `No sir; Mr. Yarbrough and I sat there.' Witness further testified that she had never heard John make any such remark or any such statement. And afterward the State introduced Mr. Yarbrough and asked him the following questions: `State to the jury whether or not, on the first night after Mr. Connell was cut, about 10 or 11 o'clock, in the back hall or dining room, at Mrs. Connell's home, you and she were there toegther, and whether or not, in substance, you asked her: `What caused this trouble, Jane?' or `What is this trouble about?' and whether or not she, in substance, replied: `John said if the old man curses me again, I will cut his guts out.' Defendant objected to the admission of said testimony, because (1) no sufficient predicate had been laid for the admission of the testimony as impeaching evidence; (2) no predicate can be laid for the introduction of such testimony as impeaching evidence for the reason that it is upon a collateral and immaterial issue; (3) the testimony offered is hearsay; (4) the said testimony is of a nature reasonably calculated to injuriously and unduly prejudice defendant in this case before the jury; (5) because said testimony is offered to contradict an original inquiry which the State made of the witness Jane Connell, and the witness with respect to said inquiry was *159 a witness for the State, and the State having made such inquiry, will not be permitted to contradict the witness' answer. Each and all of defendant's objections were overruled, and said evidence was admitted, and said witness was permitted to testify over defendants objections, as aforesaid, that the said witness Jane Connell said to him, in the conversation at the time and place before mentioned, as follows: `John [meaning defendant] said to me [meaning Mrs. Jane Connell]: `If the old man [meaning deceased] curses me again, I will cut his guts out.' And defendant at the time excepted in open court to the overruling of his objections to the admission of said testimony, and this, his bill of exceptions, is now allowed. * * * Approved with this qualification: At the time the evidence was admitted I stated to the jury that this testimony was (not) admitted as going to the guilt of the defendant, but solely as going to the credibility of Mrs. Connell as a witness; and further, so charged the jury in the general charge."
It will be perceived from this bill that Mrs. Connell was an important witness for appellant; and, among other things, she had testified on behalf of appellant that the feelings existing between deceased and defendant had always been kind. Mrs. Connell on her cross-examination testified that she had never heard John (defendant) make any threats against his father; and she also testified that she had never heard John say, "If the old man curses me again, I will cut his guts out." She was then asked to state to the jury whether or not on the first night after Connell was cut, about 10 or 11 o'clock, in the little back hall of the house, used as a dining room, she did not have a conversation with Yarbrough, in which he asked her how the difficulty came up or what caused the trouble, and she was asked to state if she did not reply that "John said if the old man curses me again, I will cut his guts out." To which witness answered no. Yarbrough was then called and testified that Mrs. Connell did make the statement inquired about to him; that is, that John said "If the old man curses me again, I will cut his guts out." The question as presented is, was this legitimate testimony to impeach the witness? For, if the witness could be impeached upon this character of evidence, we think the predicate was sufficiently laid. Was it upon a collateral and immaterial issue? Observe that the witness, Mrs. Connell, had testified for the defendant that the feeling between deceased and defendant was of a kindly character. In contravention of this, it was permissible for the State to prove by her, if it could, that she had stated to some one else that the feeling between them was of an unfriendly character. Could the State, instead of proving the fact in this general way, show by her that she had stated some incident between them in contravention of her testimony; that is, some occurrence indicating an unfriendly feeling? We think so, though some of the authorities hold that the impeachment must be direct and not of an inferential character. People v. Collum,
Exception was reserved to certain remarks of the district attorney pending the trial, and while the special venire was being impaneled and during the argument of the case. We are inclined to doubt the propriety of some of these remarks, but as to those which the court was not requested to instruct the jury, they were not of the character, without such exception, to authorize a reversal. The other remarks, we think, were sufficiently limited by the court's charge. In this connection, the twenty-seventh paragraph of the court's charge, in regard to the impeachment of Mrs. Connell by the witness Yarbrough, we think was a proper enunciation of the law.
We do not think the criticism of the court's charge on manslaughter is well taken. It also occurs to us that the court's instructions as to how the jury were to regard the relationship existing between deceased and appellant was correct. They were charged that because appellant may have killed his father, that deprived him of none of his legal rights in regard to self-defense, in connection with the presumption of innocence and reasonable doubt. It was not necessary that the court should go further and tell the jury that it deprived appellant of none of his legal rights as between manslaughter and murder in the second degree.
We do not think the facts of this case required of the court a charge to the effect that appellant must have resorted to every other means besides retreating before he was authorized to act in self-defense. Nor did the charge given by the court, that he was not bound to retreat, impinge upon his right of self-defense. If appellant's testimony is true, the only means he could have resorted to except those adopted was to retreat, and this the court expressly told the jury he was not required to do. Nor do we believe it was incumbent on the court to instruct the jury as to how they were to regard the alleged dying declaration of deceased; that is to determine whether or not the same were made in view of approaching death. We do not think the testimony raises this issue. Indeed, the alleged declarations were admissible both as such and as a part of the res gestae.
We have examined the requested charges and believe all of those which were required to be given were embodied in the court's general charge; and as to the others, they were not called for.
There being no errors in the record, the judgment is affirmed.
Affirmed.
Dissenting Opinion
I can not agree with the opinion of the majority of the court on rehearing. The following is the charge of the court on manslaughter: "Section 19. The next lower grade of culpable homicide is manslaughter. Manslaughter is voluntary homicide, committed under the immediate influence of sudden passion, arising from an adequate cause, but neither justified nor excused by law. By the expression, `under the immediate influence of sudden passion,' is means: 1. The provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. 2. The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by the passion arising from some other provocation, or a provocation given by some other person than the party killed. 3. The passion intended is either of the emotions of the mind known as anger, rage, sudden resentment or terror rendering it incapable of cool reflection. 4. By the expression, `adequate cause,' is meant such as 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. An assault and battery causing pain would or might constitute adequate cause or the existence of any other circumstance or condition which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection, is adequate cause. And where several of such circumstances might be found to exist, though no one of them might be sufficient, yet all taken and considered together might, in the opinion of the jury, be sufficient to create in the mind of the party killing the above condition of sudden anger, rage, or terror rendering it incapable of cool reflection. Sec. 20. In order to reduce a voluntary homicide to the grade of manslaughter, it is necessary not only that adequate cause existed to produce the state of mind referred to, that is, of anger, rage, sudden resentment or terror, sufficient to render it incapable of cool reflection, but also that such state of mind did actually exist at the time of the commission of the offense. Sec. 21. Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty in determining that adequacy of the provocation (if any) to consider in connection therewith all the facts and circumstances in evidence in the case, and if you find that, by reason thereof, the defendant's mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law; and so in this case you will consider all the facts and circumstances in evidence in determining the condition of defendant's mind at the time of the alleged killing and the adequacy of the cause (if any) producing such condition. And in this connection you are further charged, that if you find from the evidence that at the time of the alleged difficulty the deceased, John Connell, had made *165 an assault upon defendant producing pain, and that such assault, either alone or considered in connection with all the other facts and circumstances in evidence, was capable of creating in the mind of a person of ordinary temper such a degree of anger, rage, sudden resentment or terror as would render the mind incapable of cool reflection, and if you find the same created in the mind of defendant such condition at the time of the killing, the same might constitute adequate cause in the opinion of the jury. Sec. 22. Now, if you believe from the evidence beyond a reasonable doubt that defendant with a deadly weapon, or instrument reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion aroused by adequate cause, is the same is herein explained, and not in defense of himself against an unlawful attack reasonably producing a rational fear or expectation of death or serious bodily injury, did cut with a knife and thereby kill John Connell, deceased, as charged in the indictment, you will find defendant guilty of manslaughter, and assess his punishment." etc.
The only criticism of the charge, and the point upon which the case is reversed, is that portion which reads, as follows: "An assault and battery causing pain would or might constitute adequate cause." It is true that the statute makes an assault and battery causing pain or bloodshed an adequate cause, but does it necessarily follow that because the court, through inadvertence, put the words "or might" in the long, explicit and accurate charge, require a reversal of the case by this court? If so, article 723, Code of Criminal Procedure, upon which previous errors of trial courts have been held harmless, becomes, under the present ruling, a nullity. I deem it unnecessary to cite various cases were more glaring errors were committed in the charge than here suggested, in which the majority of this court have held the errors harmless, in the light of article 723. It will be seen from a casual inspection of the charge above copied that the learned judge authorized the jury to consider the blow in connection with all the other circumstances in passing upon whether defendant's mind was laboring under such a degree of anger, rage, or terror as to render it incapable of cool reflection, and that while so laboring he slew deceased. I think the construction placed upon the charge is hypercritical. This court, in the original opinion, held such error harmless, and no reason is suggested why the original opinion should not still prevail. All of the authorities cited by the majority to support the present position on rehearing were rendered prior to the passage of article 723, Code of Criminal Procedure, with the exception of Warthan v. State, 41 Tex.Crim. Rep.. In that case appellant's only reliance to reduce the homicide to manslaughter was the blow, and the court refused to charge the statute. We held, under that state of fact, that we could not say it was not injurious. But here the court charges the statute, adding the words "or might." Can it be seriously insisted that this mere inadvertence should cause a reversal under article 723, Code of Criminal Procedure. I think not. *166 The original opinion affirmed the judgment on the proposition that appellant was guilty of murder in the second degree. The evidence amply warrants that verdict, and does not, to my mind, suggest manslaughter at all, since the evidence clearly indicates a conspiracy on the part of appellant to kill his father. If this be true, any error in the charge on manslaughter would be harmless. So believing, I can not agree with the opinion of the majority.
Addendum
This case was affirmed at a former day of this term, and now comes before us on motion for rehearing. In the *162 original opinion, in passing on the court's charge on manslaughter, we merely said that it was not subject to the criticism of appellant's counsel. But since that time, on his motion for rehearing, appellant has called our attention directly to his bill of exceptions on that subject, and in the argument he has strongly urged that the case should be reversed because of a misdirection to the jury in the court's charge on manslaughter. We quote from the charge as follows, subdivision 4, defining adequate cause: "An assault and battery causing pain would or might constitute adequate cause." And again, in the latter portion of section 21: "You are further instructed that, if you find from the evidence that at the time of the alleged difficulty the deceased, John Connell, had made an assault upon defendant producing pain, and that such assault either alone or considered in connection with all the other facts and circumstances in evidence, was capable of creating in the mind of a person of ordinary temper such a degree of anger, rage, sudden resentment or terror as would render the mind incapable of cool reflection, and if you find the same created in the mind of defendant such condition at the time of the killing, the same might constitute adequate cause in the opinion of the jury." The contention of appellant is that the law makes an assault and battery causing pain adequate cause, and that said charge failed to tell the jury as a matter of law that same was adequate cause, but informed them that such might be adequate cause at their option. We understand it to be the settled law in this State that, wherever the evidence raises an issue, it is the duty of the court to instruct the jury upon that issue; and if the court had any doubt as to whether a charge on manslaughter should be given in the particular case, the doubt should be resolved in favor of the accused, and the charge be given. Halbert v. State, 3 Texas Crim. App., 656; Hill v. State, 5 Texas Crim. App., 2; Robles v. State, 5 Texas Crim. App., 346, Williams v. State, 7 Texas Crim. App., 396. When the court is required to give a charge on manslaughter, of course the same should be given fully and fairly; that is, it must be an affirmative, direct and pertinent application of the law of manslaughter to the facts of the particular case. McLaughlin v. State, 10 Texas Crim. App., 340; Neyland v. State, 13 Texas Crim. App., 550. Where the adequate cause proven is one of the statutory causes, as assault and battery by deceased causing pain or bloodshed, it is incumbent on the court to present this issue directly to the jury, and to inform them that it is adequate cause, because the statute makes it so. Hill v. State, 8 Texas Crim. App., 142; Foster v. State, 8 Texas Crim. App., 249; Warthan v. State, 41 Tex.Crim. Rep.. In Foster's case, supra, it was held that, if the court coupled pain and bloodshed, the charge would be reversible error, because either one was sufficient, and it increased the burden on defendant when a charge was given in the conjunctive instead of in the disjunctive. In Hill and Warthan cases, supra, it was distinctly held *163 that where appellant's defense of manslaughter was based on an assault causing pain or bloodshed, it was the duty of the court to charge directly upon that issue, and to instruct the jury that such an assault was, as a matter of law, adequate cause. In this case there was evidence of a blow struck appellant by deceased before he made the attack on deceased which caused his death; and, under this view, the learned judge who tried this case evidently felt the necessity of instructing the jury on that subject. He told them, as indicated above, not that an assault causing pain was or would be adequate cause, but he told them that it might be. And again, in applying the law to the facts, he emphasized this view by telling them, if they found from the evidence that deceased made an assault upon defendant which produced pain, and that such assault, in connection with all the other facts and circumstances in evidence, was capable of creating in the mind of a person of ordinary temper such a degree of anger, etc., as would render the mind incapable of cool reflection, and that the same did create in the mind of defendant such condition, that the same might constitute adequate cause in the opinion of the jury. Thus leaving it optional with the jury — after they had found all of the other conditions to exist in the mind of defendant, if they found that a blow was inflicted on him by deceased which caused pain — to find, as they might see fit, whether or not the blow so inflicted was adequate cause. This, as we understand it, is directly in the face of the statute, which does not leave it optional with the jury when they find that a blow was inflicted which caused pain, and in that connection finding all the other elements, to then determine whether or not, in their opinion, such assault was adequate cause. If appellant was entitled to a charge on manslaughter at all, he was entitled to an affirmative charge on that subject fully and fairly presenting his defense. The charge in question, however, in our judgment, was calculated to cut him off from his defense of manslaughter altogether, inasmuch as it left to the jury to decide whether or not a cause denominated as adequate cause by the statute, was in fact adequate cause. The jury that tried this case evidently did not believe in appellant's theory of self-defense, and his only other defense to the State's accusation was manslaughter, and this charge cited above was nowhere else corrected, even if it be conceded that such a flagrant error could be corrected, had the effect to destroy that defense. We have given this question a good deal of thought, and we can not let this charge stand as a precedent, nor can we say that it was not calculated to injure his rights. On the contrary, as shown above, we believe that it deprived him of the defense of manslaughter altogether. Accordingly we hold that for this error the rehearing must be granted, and the judgment is reversed and the cause remanded.
Rehearing granted and reversed and remanded. *164
