Lead Opinion
Appellant was convicted of manslaughter, and his punishment assessed at five years- confinement in the penitentiary.
1. Bill of exceptions Ho. 3 complains that the State was permitted to prove by Dr. G. T. Vinyard the following: “Q. From the examination you made there what is your best judgment as to the entrance and range of that bullet? Appellant’s counsel: We object to that. Let 'him state the facts and let the jury draw their conclusions. The court: Did he state he passed the probe clear through the entrance to the exit? A. Ho, sir. I passed it up from the entrance wound; after it got up so far it could have been passed any other way on account of the lung tissue. Q. What was the direction of the track of the bullet? What I want to get.at is, what was the range of that bullet from the «place where you begun to probe from the entrance wound, with reference to the exit?” Appellant objected on the ground that it was a conclusion. The court: “That is a matter for the jury to pass upon and I will admit the testimony.” “A. The range of the bullet from where I begun to probe from the entrance wound was upward and to the right, and was in the direction of the exit wound,” to which said last question and answer the defendant objected for the reason, first, that it was but the opinion of the witness on a matter not the subject of expert testimony; second, the witness had shown by his first answer to said question that the direction from whence said bullet came was speculative and uncertain, and had for its object the relative position of the parties; he could only state actual conditions and not leave the impression from the manner and verbiage of his answer as to what *176 his opinion was, as to the relative position of the parties.” We see no objection to this testimony. The witness appears to have been a physician. The court does not certify that he was not an expert on gun-shot wounds, and hence the bill to that extent is defective. While it is true, appellant objects to same on the ground that he is not an expert, yet an objection is not a statement of a fact. Furthermore, the testimony under no view point, as we understand it, could be hurtful in this case.
2. Bill of exceptions No. 4 shows that the State placed A. M. Works, Jr., the official stenographer of said court, upon the stand, and after proving by him that he had reported the two former trials of this cause in the District Court of Potter County, and after proving by said witness that he had transcribed the notes of the defendant’s testimony given at the first of said trials, and after testifying that such transcription was a correct statement of the testimony of said witness Cornelius, thereupon the witness was permitted to state various things that the defendant testified on a former trial, to all of which appellant objected on the ground that it was not shown that the paper from which the witness was reading had ever been signed by the defendant as a signed statement; that no testimony whatever was offered to show that the defendant had admitted to any person that such question and answer had been asked him and answered by him as stated in said document; and that it was not shown that he had at any time admitted the correctness of said question or answer. The bill is approved with this explanation: "This witness testified on his voir dire examination that he was a competent and experienced stenographer; that he had been the official court reporter for this judicial district for the last two years and was still occupying said position; that he was present and acting as official stenographer.and reporter for the district at a former trial of this cause in Amarillo, and heard the defendant testify in his own behalf at said trial; that witness took stenographic notes of the testimony of defendant at said trial, and that he knew he had taken the testimony correctly; that he transcribed his notes of said defendant’s testimony correctly and knew that it was a correct statement of defendant’s evidence, but as to some of the testimony shown in the bill" he had no independent recollection of it.” There was no error in admitting the stenographer’s notes to be introduced as" above pointed out. This question has been decided by this court adversely to appellant’s contention, gee Casey v. State,
3. Bill of exceptions No. 5 shows that while the witness Mrs. George Highfill, wife of deceased, Frank Harrington and R. D. Wilson, were on the stand, in behalf of the State, the court, over appellant’s objection, permitted each of said witnesses to testify that the deceased was an inoffensive quiet man and peaceable citizen, of a kind and
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inoffensive disposition, to which testimony, on the part of each of said witnesses, the defendant in open court objected for the reason that said testimony was offered for the purpose of proving the character and general reputation of deceased as 'being a violent, dangerous man, or a man of quiet disposition, when such issue had not at that time nor any other time during the progress-of the trial been raised by the defendant, and deceased’s character had not been attacked. The court overruled the objection for the reason that he permitted it to go before the jury on the issue of threats alleged to have been made by deceased against the life of defendant as raised by the testimony offered by the defendant. This bill is approved with this explanation : “The defendant had offered testimony of numerous threats made by deceased against the life of defendant, some of which are shown to have been communicated to defendant and some were not. After the defendant had rested his case the State offered the testimony of the above three witnesses in rebuttal, and this evidence was admitted under authority given in article 713 of the Penal Code, and was directly in rebuttal to said evidence of previous threats of deceased.” Said article justified the court in the ruling complained of. Arnwine v. State,
4. Bill of exceptions ISTo. 6 shows the following: After the State had introduced the witness Burwell and he had testified, appellant presented the court the following motion: “Now comes the defendant, by his attorneys, and moves the court to exclude from the consideration of the jury the testimony of the witness W. M. Burwell concerning the statements made by defendant to Highfill on the morning of the killing and immediately preceding the killing, for the following reasons, to wit. First. The defendant in this case is on trial for manslaughter only, he having been acquitted of murder, and said testimony does not raise, or tend to raise, or support the charge or issue of manslaughter. Second. Because said testimony raises, and tends to raise, only the issue of murder of the first or second degree only, and not manslaughter, the charge upon which defendant is now upon trial, and same tends to and does prejudice the rights of the defendant before the jury and does not support or tend to support its charge for which he is now upon trial, but does tend to show that if guilty at all, he would be guilty of murder, an offense of which he has already been acquitted by the jury in a former trial of this cause.” This bill is wholly defective. It does not state what the witness Burwell testified to. Under the rules of this court we are not permitted to look at a statement of facts unless the bill refers to the statement of facts to complete or make perfect a bill of exceptions. Seasons for objecting to testimony is not stating that said testimony is subject to objections made. In other words, in order for this bill to be complete it will be necessary either for *178 the testimony complained of from the witness Bnrwell to be embodied in the bill, or for the bill to refer to the testimony of Bnrwell in the' record before us. Neither was done. Therefore, in the shape this bill is presented, there is no error authorizing this court to review said testimony.
5. Bill of exceptions No. 7 complains that the court erred in not excluding the testimony of H. A. McDonald for the same reason urged in the testimony of the witness Burwell, but the bill is defective in the same particular complained of in bill No. 6, in that it does not state what the testimony of the witness McDonald was. Bill of exceptions No. 8 is in the same condition and complains of the failure of the court to exclude the testimony of A. M. Works.
The questions attempted to be covered by appellant’s bill of exception, which we hold is defective, is, however, properly raised by bill of exceptions No. 12. This bill complains that the court erred in failing to give the following charge to the jury: “The defendant requests the court to charge the jury to return a verdict for the defendant, and acquit him, for the reason that the testimony does not raise nor tend to raise, does not -support nor tend to support the charge of manslaughter against him, he being on trial herein for that offense.” Appellant in this case had on a previous trial been acquitted of the two degrees of murder, and upon this trial was convicted of manslaughter, and his insistence, as stated in the bill, is that the evidence showing nothing but murder in the first or second degree, that he is entitled to an acquittal, and cites us to the case of Parker v. State, 22 Texas Crim. App., 105, and Fuller v. State, 30 Texas Crim. App., 559. This question has also been before this court in the case of Turner v. State,
6. Bill of exceptions No. 9 complains that the court erred in failing to give a charge upon self-defense based upon real and apparent danger. This charge was fully covered by the main charge of the court. The charge of the court appears quite full and is as follows: “8. A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.
"9. If from the evidence you believe the defendant billed the said George Highfill, but further believe that at the time of so doiug the deceased had made an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under .such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed and was making such attack on defendant, and if the weapon used by him and the manner of its use was such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant.” In the light of this charge we do not think it was necessary to give appellant’s special charge.
7. Appellant further insists the court should have charged on the law of retreat. The evidence in this case does not suggest said issue. It shows that deceased was sitting in appellant’s butchershop when appellant went in and offered him a violent insult, which deceased immediately resented, and appellant shot deceased to death. Neither of them left the room. There was no retreat on the part of either evidenced by the record, and the law of retreat, therefore, is not involved in this case.
8. Bill of exceptions No. 10 complains that the court erred in failing to give charge No. 3, which in substance, tells the jury that if appellant provoked the difficulty with the intention to take the life of deceased, he would be guilty of murder, and if they so - find they should acquit appellant. We have discussed this question above and there is no merit in same. The bill further complains that the court *183 erred in not charging the jury as follows: “If you believe from the evidence beyond a reasonable doubt that the defendant provoked the contest with the deceased without any intention of killing or doing deceased any serious bodily injury, and that he suddenly and without deliberation did the act of killing, under the immediate influence of sudden passion arising from an adequate cause, as that term is defined in the main charge of the court, the homicide would be manslaughter. On the other hand, however, if the defendant did not provoke the difficulty with George Highfill with the intention of killing him or doing him serious bodily injury, or if you have a reasonable doubt as to whether or not he did, and further believe from the evidence, that defendant shot and killed the said George Highfill to prevent the said Highfill from murdering or inflicting serious bodily injury upon him, the defendant, and not in a sudden transport of passion arising from an adequate cause, then and in either event you will acquit the defendant and say by your verdict not guilty.” The latter part of said charge, with reference to self-defense, was covered in the main charge of the court. That portion of the requested charge which presented the issue of manslaughter was pertinent and should have been given, but in view' of the verdict in this case it is rendered entirely harmless not to have given same since the verdict of the jury in this case is for manslaughter.
The court gave the jury the following charge on the question of provoking a difficulty: “A person may have a perfect right of self-defense, though he may not be entirely free from blame or wrong in the transaction. If the blamable or wrongful act was not intended to produce the occasion, nor. an act which was under the circumstances reasonably calculated to produce the occasion or provoke the difficulty then the right of self-defense would be complete though the act be not blameless. But you are instructed that a party cannot avail himself of a necessity which he has knowingly and willingly brought upon himself. Whenever a party by his own wrongful act produces a condition of things wherein it becomes necessary for his safety that he should take life or do serious bodily harm, then the law imputes to bim his own wrong and its consequences to the extent that they may and should be considered in determining the grade of his offense (if any), which but for such acts would never have been occasioned. How, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant made use of abusive language to and in the presence and hearing of the deceased, George Highfill, at the time of the fatal difficulty, concerning him, the said George Highfill, under circumstances reasonably calculated to provoke a breach of the peace, and that such language was used for the purpose and with the intent, on the part of the defendant, to provoke the deceased to attack bim (defendant) and that said language used by defendant, if any, towards the deceased, was calculated to and did provoke the *184 said George Highfill to make an attack upon the defendant, and that it thereby became necessary or was apparently necessary for defendant (viewed from his standpoint), to take the life of said deceased, then and in that case the defendant would not be justified upon the ground of self-defense, in killing said George Highfill. But if you, on the other hand, find that the language used by defendant to and in the presence and hearing of deceased, was not calculated or intended to provoke a breach of the peace then and in such case the defendant’s right of self-defense would not in any wise be abridged or lessened.”
9. The court did not charge on any issue except manslaughter and self-defense. It is true this charge does not tell the jury of what offense appellant would be guilty if he provoked the difficulty with intent to commit a breach of the peace, but this could not injure appellant since he was only being tried for manslaughter. How, if the court had given the charge insisted upon by appellant, - to wit: that if deceased provoked the difficulty without the intent to kill, he would be guilty of manslaughter, it would have been in. substance the same charge that the court did give, since appellant, upon this trial, was only being tried for manslaughter. Furthermore, it would have been an offensive instead of a defensive charge and in the "light of the verdict in this case, is rendered entirely harmless since the jury found appellant guilty of manslaughter. To say that appellant could complain that the jury were not charged upon another theory than that which was charged upon, upon which manslaughter could be predicated, is a complaint without merit and is a matter upon which appellant cannot be heard to complain. We have before us this kind of a case: The jury found appellant guilty of manslaughter upon one theory that was presented to the jury by the court. How, appellant comes to this court and complains that the trial court should have presented another theory of manslaughter and asks this court to reverse the case therefor. The above quoted charge of the court shows that if appellant provoked the difficulty he could not justify on the ground of self-defense. In addition to that, the court gave a complete charge on manslaughter. How, if the jury had been given the theory complained of, could it be rationally argued that they would have disregarded the theory upon which they convicted him and taken the theory that the court neglected to charge? We think not. But the converse would be the more rational conclusion; that is, appellant would have had a better chance to escape punishment in this case by only presenting the theory that the court did present, than he would have had if appellant’s charge had been given. Under article 723 of the Code of Criminal Procedure .of this State, we are not authorized to reverse a case unless the error was calculated to injure the rights of appellant and by no process of reasoning can we hold that the omission to charge upon the theory *185 of manslaughter suggested by appellant in his bill of exceptions, was calculated to injure him, but would simply have served to give the jury additional grounds of convicting him of manslaughter, of which offense he was found guilty.
10. The only other question we deem necessary to review is whether or not the issue of provoking a difficulty was suggested by the evidence in this case. On the trial of the case W. M. Burrell was placed upon the stand, and, among other things, testified that he was on the former jury that tried appellant for this homicide. In that trial the defendant testified that somebody, a boy he thinks, came up to his house and told him to come down to the shop; that he put on his overcoat and went down to the shop; that he went in the back door of his shop; he found deceased Highfill sitting on the opposite side of the room on a stool. Deceased had a pocket knife in his hand pecking on the bottom of the stool or whitting. He said deceased spoke to him, and said he was sorry to get him out a day like that and he sick. The language used by the deceased was “I am sorry to drag” or “pull you out a day like this, old man, and you sick, but I have got to have my money,” or something to that effect. The language he used was, “Tuck, Old Man, I am sorry to drag you out a morning like this and you sick, but I have got to have my money,” or “I want some money.” Appellant testified his reply to deceased was that he (deceased) had robbed or stole out his business, and that he could not pay him any money, or had no money for him; something like that. That immediately after the defendant made this statement deceased got up out of his chair or off the stool and started towards him (appellant); that he (appellant) pulled his pistol and shot at him. He said he had his pistol in his right hand overcoat pocket; that he had his hand on his pistol when he walked to the door, or when he stepped to the door, and had his hand on his pistol in his pocket when he used the language he said he used to the deceased. On the trial counsel for the State asked defendant if he thought Highfill would resent what he said to him about robbing and stealing the business out, and he answered that he believed Highfill would resent it. “You asked him whether or not he thought Highfill would resent the remark used as to his robbing or stealing the business out, and defendant answered that he thought Highfill would resent it; and then you asked defendant what he intended to do if Highfill did resent the remark, and he answered that he intended to protect himself if Highfill did resent it. That may not be the exact words, but it is the substance of what he said.” This testimony was also reproduced by the stenographer who took defendant’s evidence down at the former trial, and the stenographer’s notes show substantially the same as above. Hnder every decision that has ever been rendered in any court, this evidence clearly shows a provoking of the difficulty. Here we are not left to com *186 jecture as to whether words were intended to provoke a difficulty, but appellant himself admits he used the language expecting that it would provoke a difficulty; that he had his pistol in his pocket and his hand on his pistol expecting to use same if deceased did resent the insult offered. It is true that the statutes of this State say no verbal provocation shall justify assault, but we are not discussing that question here. If deceased had been living and had cut the defendant because defendant said he had robbed him, the insult could only be used in mitigation of deceased’s punishment, but any words that are calculated to provoke and do provoke a difficulty, and are so- intended, will be and are a basis for a charge on provoking a difficulty. The record before us shows that defendant knew it would provoke a difficulty, or at least thought it would; that he used it for that purpose, and had his weapon ready to shoot if it did cause a difficulty.
11. The court gave the following charge on self-defense: “A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such ease the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.
“If from the evidence you believe that the defendant killed the said George Highfill, but further believe that at the time of so doing the deceased had made an. attack on him which, from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed and was making such attack on defendant, and if the weapon used by him and the manner of its use was such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to indict serious bodily injury upon the defendant.”
Appellant complains that the charge is erroneous, because of the following phrase therein: “and the relative 'strength of the parties and defendant’s knowledge of the character and disposition of the deceased,” appellant insisting that the record before us does not show the knowledge on the part of the defendant and the character and disposition of the deceased, and that the relative strength of the parties has nothing to do with this case since it was a killing by the use of a drearm. We have held that the strength of parties where drearms are the instruments used to commit the homicide is not a *187 basis for passing upon the guilt or innocence of the parties. But certainly this clause could not have injured appellant in this case. The record does not show the size of the deceased, and the defendant was before the jury, and they could judge of his size, but certainly no juror could form any conclusion from said statement injurious to the rights of appellant in this case, and furthermore, the defendant’s knowledge of the character and disposition of deceased is made clearly manifest by this record since they had been partners in the butcher business. The charge is a correct presentation of the law of self-defense; it informs the jury that they must look at the facts from the defendant’s standpoint, and that he could defend against an apprehension or expectation or fear of death or serious bodily injury. The charge being ample to protect appellant’s rights in this case, it certainly was not error not to give another charge on the question.
There is nothing in this record that requires a reversal of this case, and the judgment is in all things affirmed.
Affirmed.
[Motion for rehearing overruled October 21, 1908, without written opinion.—Reporter.]
Dissenting Opinion
(dissenting).—I am unable to concur, and file some of the reasons for my dissent.
Appellant was convicted of manslaughter and allotted the maximum punishment in the penitentiary for that offense.
A brief statement of the facts show that appellant and deceased, George Highfill, had been partners in the butcher business. Owing to trouble arising between them, appellant had bought the interest of Highfill and continued the business. Just before purchasing Highfill’s interest, there came up some words between them, during which conversation appellant said to the deceased that he, deceased, was robbing the business. Deceased drew his knife and threatened to . cut the throat' of appellant. Shortly afterwards appellant bought out Highfill’s interest, and continued to run the same under his own name. A part of the purchase price was credit. Deceased called on appellant several times for money before the deferred payments were due, and at the time of the killing appellant still owed the deceased a deferred payment of $75, which was not due. Deceased made quite a number of threats against the life of appellant on account of his not paying this money, such as that he would “kill the old ball-headed son-of-a-bitch, and that he would cut his head off,” etc. Most of these threats were communicated to appellant. These continued up to within twenty-four hours of the homicide. On the morning of the homicide appellant was sick, and remained at his residence. Deceased went to the market; failing to find appellant, requested appellant’s son, who was in charge of the *188 market at the time, to send for his father; that he wished to see him. In response to this call appellant came to the market where Highfill had located himself in the rear room of the market. Appellant went to the room where deceased was sitting on a chair or stool; a conversation ensued. Appellant’s son was the only witness to the conversation and immediate occurrences attending the tragedy except the reproduced statements of appellant’s testimony on a previous trial. These reproduced statements were to the effect that when he received the message from deceased to meet him, it being cool weather, he donned his overcoat and placed in its right-hand pocket a pistol, and proceeded to the point of meeting. He further stated, substantially, that he anticipated trouble, or that may be deceased would attack him and, therefore, he carried his pistol; that when he entered the room where deceased was, deceased told him he must have his (deceased’s) money; that he (appellant) replied, “You have robbed the concern or the business, and I have no money for you,’ or substantially such language; that the deceased immediately replied, “You are a God damned liar,” and started towards him (appellant) with his knife in a threatening manner as if to make an assault upon him; that at the time he entered the room where deceased was sitting on the stool, deceased had his knife open, and when the deceased got up and started towards him he told him twice to stop; he did not and he (appellant) fired two shots, one as deceased was coming towards him, and the second when he was just in the act of turning. Appellant’s son hearing the conversation, went to the room where they were, and a portion of his testimony is as follows: “When I got back there Highfill was sitting down in a chair, just getting up-, near the north wall, about six or eight feet from the back door leading out into the yard. Papa was standing right in the door, hut I don’t know whether just inside or outside of it. I don’t know what had been said between them before I got back there. When I started back there I heard papa say, ‘George, you have not treated me right about this money. It is not due.’ I do not know just what George said in reply. I think George said, ‘You are a God damn liar.’ WRen he said that he was just raising up from the chair, and had his knife in his hand, with it like this (indicating) and then he started: to run towards papa. Papa, was standing still at that time, I think, and he told George to stop, but he kept coming and papa shot. When the first shot was fired Highfill was whirling to the right.” This record further shows that appellant had on a previous trial been acquitted of murder in both degrees, and convicted of manslaughter. Objection was urged to the introduction of the statements of appellant before the former jury, he not taking the stand in his own behalf on the trial which resulted in this conviction. The bills of exception are perhaps not sufficient to raise *189 these questions as they do not contain the statements introduced in evidence. This is a sufficient statement of the case to review some of the questions thought to be of importance.
Quite a number of exceptions were reserved to the charge as given— some to the omission of the court to charge certain phases of the law, and some to the refusal to give requested instructions asked by appellant. These matters are properly presented by bills as well as made grounds of the motion for a new trial.
The court’s charge on self-defense is criticised: That portion is as follows: “If from the evidence you believe the defendant killed said George Highfill, but further believe that at the time of so doing the deceased had made an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed and was making such attack on defendant, and if the weapon used by him and the manner of its use were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant.” Then follows a charge on provoking a difficulty. I believe the special charges requested covering these matters should have been given, inasmuch as, in my opinion, the charge on self-defense was wrong, and that with reference to provoking a difficulty was not called for by the facts. The charge on self-defense is based upon the supposition that the danger was
actual
and not
apparent.
Under our authorities I believe this charge should have submitted not actual but apparent danger. See Phipps v. State,
As before stated, I am of opinion that the issue of provoking a difficulty is not in the case. It certainly is not under the testimony of the son of appellant. I suppose the statements of appellant on a former trial were relied upon to make this an issue in the case. Recurring to that testimony for a moment, it would seem that appellant stated on a former trial that he went to the place where there was some anticipation of trouble. This was at the request of deceased who had threatened to kill him if he did not pay the money demanded. The money was not .due. Appellant armed himself in anticipation of this trouble, and went, as he states, if the trouble came up, prepared to defend himself, and that he intended, if the trouble came up, to take care of himself; that when he reached the place deceased demanded payment of the money, and, in substance, he replied, “You have robbed the concern or robbed me, and I have no money for you.” If provoking a difficulty is in the case, it is from this testimony. Our statute, article 701, Penal Code, is as follows: “Insulting words or gestures, or an assault and battery, so slight as to show no intention to inflict pain or injury, or an injury to property, unaccompanied by violence, are not adequate causes.” Penal Code, article 595, is as follows: “Ra verbal provocation justifies an assault and battery, but insulting and abusive words may be given in evidence in mitigation of the punishment affixed to the offense.” If these statutes mean anything, they mean that verbal provocation will not justify an assault, and can only be given in mitigation. That insulting words do not
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justify an assault see Polk v. State, 30 Texas Crim. App., 657; Barbee v. State,
The charge is further criticised because the jury were not charged that appellant had the right to shoot as long as the danger existed. This charge was not given, but should have been. There were two shots fired. There is a little confusion as to the condition of the parties after the first shot. Some of the testimony put deceased in the act of turning, thus leaving his side to appellant. There is no evidence of an abandonment of the difficulty by deceased. The shots came as rapidly as two shots could be fired from a pistol, or practically so. The accused, under all the authorities in Texas, where the question has been discussed, has the right where self-defense is the issue not only to shoot in the first instance to protect his life or his body from serious personal injury, but has the further right to continue shooting until relieved of all such danger, and under the circumstances of this case I am of opinion this phase of the law should have been given. A charge was asked by appellant pertinently submitting this issue to the jury, which was refused by the court.
Appellant requested an instruction to the effect that if he had been previously acquitted of murder in the first and second degree, and the jury should find that evidence on this trial raised murder in the first or second degree, they should acquit. This was predicated upon the fact that he (appellant) had been formerly acquitted of both degrees of murder and convicted of manslaughter. The theory of appellant as to the law in that character of case is that if appellant is acquitted of murder altogether and convicted of manslaughter, and ■ upon the subsequent trial the facts only show murder, he is entitled to an acquittal. This is a very serious question, and one that the writer has not found in any of the cases in this State to have been discussed elaborately. In Parker’s case, 32 Texas Crim. App., 107, it was decided ’that where a party had been previously acquitted of murder and convicted of manslaughter, and subsequently tried for manslaughter, that the court was in error in charging the jury substantially that the evidence sustaining murder would justify the jury in convicting of manslaughter. The court reversed the judgment because of this charge, and correctly so. It is a fundamental proposition in this State about which there can be no contest or discussion, and the statute so provides, that the court must deliver to the jury a written charge' in which he distinctly sets forth the law applicable to the case. Code of Criminal Procedure, article 715. It may be pertinent to suggest at this point that the offense of which appellant stood indicted at the time of his trial was manslaughter; he had been acquitted of murder in both degrees, and the case stood, so far as the State was concerned, on manslaughter. The law applicable to the ease then was *193 the law applicable to manslaughter and not murder. It would hardly require authorities to sustain this proposition. It is the statute and the Constitution and it is the unbroken current of decisions in the history of Texas. It may arise sometimes that it is necessary to define higher and lower offense, etc., in order to fit the law to the case on trial, and to explain matters so the jury can get a clear conception of the law .applicable to the case they are trying and are to decide. However, in a trial for manslaughter, it is not necessary to instruct with reference to the law applicable to murder for the purpose of enabling the jury to understand the law of manslaughter, for it is an offense distinctly defined and explained by the Code, whose elements are essentially different from murder. Murder is the killing of a human being upon express or implied malice, malice being the distinguishing feature that constitutes murder where the death of, a human being is brought about as against manslaughter, which is an intentional and voluntary killing, but in a condition of mind incapable of cool reflection, and which excludes malice, because if the mind is cool and deliberate and the killing occurs, it is murder and not manslaughter, it being essential to manslaughter that the adequate cause exists as well as the passion, which the law demands, and which renders the mind incapable of cool reflection. Wherever these combinations exist murder is excluded. To quote from the Parker case, supra, “It seems to us that, as the defendant has been acquitted of murder, he can only be tried and convicted of manslaughter. If the evidence shows that he is guilty of murder, he can not be convicted of that offense, because he has been tried therefor and acquitted. He can not be convicted of manslaughter, because if guilty of murder he is not guilty of manslaughter, the two offenses being essentially different, although grades of homicide. It is true that when the indictment charges murder, and the defendant is on trial for that crime, he may be convicted of any grade of homicide, and if convicted of a lower grade than murder in the first degree, the conviction will not be set aside because the evidence proves that he is guilty of a higher grade than the one of which he is convicted. (Baker v. State, 4 Texas Crim. App., 223; Powell v. State, 5 Texas Crim. App., 234.) But here the defendant was not on trial for murder, and could not be convicted of murder, and yet the court tells the jury to convict him of, manslaughter if he is guilty of murder.
“There is a marked difference between this case and the case of a defendant charged with and on trial for murder. Every indictment for murder includes manslaughter, and the jury may acquit of murder and convict of manslaughter, at their discretion. But manslaughter does not include murder, and a party charged with
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and on trial for manslaughter can not be convicted of murder, and especially of a murder of which he has been acquitted.” The Parker case has been endorsed in all subsequent cases so far as the writer is informed. The Puller case, 30 Texas Crim. App., 559, recognizes the Parker case as correctly decided, but in that case it was held that as appellant was only convicted for murder in the second degree, the rule in the Parker case did not apply. In Conde’s case,
“The proposition now before us is, the indictment in the present case being defective and invalid to the extent that a legal conviction thereunder' could not be maintained, does the acquittal under such an indictment of murder in the first and second degrees bar a prosecution on a new and sufficient indictment for said offenses? To this question there is but one answer, whether viewed from the provisions of the Constitution, art. 1, sec. 14, from legislative enactment, Code of Criminal Procedure, Articles 9, 20, 561, 762, or judicial opinion, and that is, that wherever a party is placed upon trial for murder under a bad indictment, and there has been an acquittal of any offense charged in it, that it can be plead in bar of a prosecution on a valid indictment. Our Constitution provides that, ‘no person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction/ It will not be questioned that the district court in which appellant was convicted is a court of competent jurisdiction, nor that he was acquitted of murder in both degrees and upon a valid indictment, and so it is that wherever a party is tried in a court of competent jurisdiction, and an acquittal is secured, it makes that acquittal a bar against subsequent prosecution for the same offense regardless of the validity of the indictment. See Anderson v. State, 24 Texas Crim. App., 717;
In the case of Hirshfield v. State, 11 Texas Crim. App., 207, Judge Hurt went into somewhat of a discussion as to what is the same offense in regard to two statutes involved in that decision. The question at issue in the Hirshfield case was whether or not a party could be convicted for swindling under a certain statute, when that statute provided if the facts constituted any other offense than swindling the party should not be charged with swindling, but he should be charged under the other statute and with the other offense. He discussed the subject from the standpoint of these two statutes that the same acts were necessary to constitute a violation of both. When viewed in the light of the question discussed by that able jurist, the Hirshfield • opinion is correct, but it has no application to a prosecution where the offense has degrees, as is the case here. To quote from Judge Hurt: “But to the proposition. Is the defense, to wit: former conviction of the swindling, a legal one to the indictment for uttering this forged instrument?” After quoting the section of the Constitution already cited, this question was asked: “What is meant by the term 'same offense?’ Does it mean the same offense eo nomine, or the same act or acts?” Let us consult our Code. From it we learn that an offense is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed by this Code. From this we are not to infer that a single act in every case constitutes an offense. In a great many offenses several acts are necessary to constitute an offense. These, however, under this definition are considered the act -which is forbidden or punished by law. To these acts or omissions the Code, in most of the cases, has given names. This, however, is- conventional. To the act constituting larceny under the common law, the Code gives the name of theft. But back to the proposition!
“The Constitution prohibits placing a citizen twice in jeopardy for the same offense. Is the name given to the act or acts which constitutes the offense to control when we are seeking to determine whether it be the same offense or not, or must we not look to the act or acts, or the omissions prohibited and punished by the Code, in order to determine this question? We must, in determining whether they are the same offense or not, look to the act, acts or omissions; for these and not the name by which they are called are denounced by the Code. We, therefore, conclude that a person shall not be twice put in jeopardy for the same act, acts or omission, which are forbidden by positive law, and to which is annexed, on *198 conviction, any punishment prescribed in the Code. K conviction, therefore, for swindling which rests upon and is supported alone by the act of passing as true the instrument set forth in this indictment is a full and complete satisfaction of the law which forbids, and upon conviction prescribes, a punishment for said act.
“The act of knowingly passing as true a forged instrument is denounced by positive law, with a punishment annexed which is prescribed by the Code. This act, as was foreseen by our law makers, enters into and constitutes the vital elements of, at least, two offenses, to wit: swindling and knowingly uttering a forged instrument as true. The act, however, being the offense, and not the name, a conviction for this act would be a complete satisfaction of the violated law. But we are met just here with the proposition that, as the defendant could not have been convicted under the indictment for swindling of the offense of knowingly passing as true a forged instrument, therefore he can not plead this conviction for swindling to a prosecution for uttering a forged instrument. We are aware that in Thomas v. State,
The Hirshfield case was followed in the latter case of Witherspoon v. State,
The trial of an accused person, finding him guilty of an offense of the lower grade than the higher charged in the indictment, is such an 'acquittal of the higher charge as will protect him from danger of conviction of the higher on a second trial, and the authorities so hold, and that when he moves for a new trial, such motion is based on the issue which has been determined against him, and he, therefore, waives his constitutional guarantee that he shall not be twice put in jeopardy for the offense of which he was found guilty, only so far as is necessary to obtain a new trial on that issue. He does not waive his constitutional right as to those degrees of the offense of which he was by the verdict expressly or inferentially acquitted; nor can he be retried for any higher grade of offense than that of which he was found guilty on the former trial. Constitution, art. 1, sec. 14; Code of Criminal Procedure, arts. 9, 20, 561, 762. The cases in this State have already been cited in the former part of this opinion. See also Lopez v.
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State, 2 Texas Crim. App. 204; Black v. State,
An indictment charging murder, which means murder in the first and second degrees, under article 752, may also include manslaughter, negligent homicide, and assault with intent to murder, or any other culpable homicide designated in the statute. How, if the party be acquitted of murder, and is again placed upon trial for manslaughter, and the evidence shows murder, and excludes manslaughter, and a conviction can be sustained for manslaughter upon that evidence, thefi upon the same theory and upon like evidence he could be convicted of negligent homicide in either or both degrees, homicide in either or both' degrees, or an assault with intent to murder. This proposition would hardly be maintained as correct, especially with reference to negligent homicide, for under either one of those offenses the intention to kill must be wanting in order to constitute the act negligent homicide, yet culpable homicide is included by virtue of this statute as a degree of murder. Flynn v. State,
In regard to the question as presented in the case, • I do not believe the charge requested by appellant to acquit if the evidence showed murder in the first or second degree should have been given, unless there was wanting evidence to prove the State’s case of manslaughter. Scroggins and Pickett cases, supra. But the writer *204 is fully persuaded that where the State has no evidence upon which to predicate a conviction for manslaughter, or negligent homicide, as the case may he, and must rely alone upon evidence of murder where an acquittal has been obtained for that offense, then the accused would have a right to an instruction of acquittal, otherwise it occurs to me that the constitutional guaranties and legislative enactments would be more than worthless and idle vagaries. Be it understood that this court did not ordain the Constitution, nor did it include or insert one single plank in it; nor create the acts of the Legislature, but this court’s mission as a court is simply to enforce these provisions of law as we find them, and as long as the acts of the Legislature are in accordance with or rather not antagonistic to the Constitution, so far as the courts are concerned, they must stand until repealed by legislative authority.
For the reasons indicated in regard to the errors of commission and omission, referred to in this case, the judgment ought to be reversed and the cause remanded.