48 S.W. 170 | Tex. Crim. App. | 1898
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of fifteen years; hence this appeal.
As explained by the court, there is nothing in appellant's bill of exceptions questioning the action of the court in regard to the impanelment of the jury. It is not every opinion formed that disqualifies a juror. In this case none of the jurors had any fixed opinion as to the guilt or innocence of appellant. The only one that appears to have entertained any opinion on this subject at all stated that he could give appellant a fair and impartial trial, and that his verdict would not in the least be affected by his opinion. It appears that full opportunity was given appellant to probe this juror as to his opinion, and the channel through which same was formed.
In the motion for a new trial appellant excepted to the following charge of the court: "If you believe from the evidence in this case that the deceased, Will Swain, made an attack upon the defendant, and inflicted upon him blows, and the manner of the attack, coupled with his acts and conduct at the time, was such as to produce in the mind of the defendant a degree of anger, rage, or sudden resentment or terror, such as rendered his mind incapable of cool reflection, and that such state of mind would thereby have been commonly produced in a person of ordinary temper and courage, and in such state of mind, so produced, if it was, the defendant shot with a pistol, and thereby killed, the deceased, Will Swain; and you should further believe that in killing the deceased, if he did kill him, the defendant was not justifiable under the rules of self-defense, about which you will be charged hereinafter, — then the defendant would be guilty of manslaughter." Appellant objected to this charge upon two grounds: First, that the court erected an ideal standard by which to test the defendant's passion, whereas the jury should have been instructed to view this matter only from the defendant's standpoint; and, further, that the standard erected was not authorized by statute, the statute only requiring that appellant be tried as to the issue of manslaughter as a person of ordinary temper, and not as a person of ordinary temper and courage. We have examined the record carefully, in order to determine whether or not a charge on manslaughter should have been given, at all, and we believe there is one phase of the case which *22 suggested this issue; that is, if appellant went to the place where the difficulty occurred, on a peaceful mission, to endeavor to settle the trouble between him and deceased, and the deceased became the aggressor, and first attacked him, and struck him a blow or blows, which caused him pain or bloodshed, and his passion was thereby excited, and he then formed the intent to slay Swain, and did so, then, and in such case, he would only be guilty of manslaughter. As the issue of manslaughter was raised, it was the duty of the court to give a correct charge on this subject. The statute (Penal Code, article 700) uses this language: "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." The statute erects this standard to test the effect of the adequate cause on the defendant's mind, and it is competent for the court to lay down this test; but when it has done this it has gone quite far enough, and it is not proper to incumber the defendant on this issue with an additional burden. "Courage" is not the same thing as "temper." "Temper" means "disposition of mind; as inclination to give way to anger, resentment, or the like." "Courage" means "that quality of mind which enables one to encounter danger and difficulties with firmness, or without fear or depression of spirits; valor, boldness, bravery," etc. A man may be a person of mild and agreeable temper or disposition, capable of patience and forbearance, with coolness under great insults or provocation; and yet he may be a man of great courage, or vice versa. As we understand it, temper and courage are two different things. A man of ordinary temper might become excited with passion long before a man of courage would be, under similar circumstances; and to lay down a rule going beyond the statute authorizing the jury to regard the defendant not only as a man of ordinary temper, but as a man of courage, was charging an additional and different requisite on which to base defense of manslaughter than is provided by statute. We think this was error.
In regard to the charge of the court we would remark that, in our opinion, the charge is too general. While a court should always define and state matters of law pertinent to the case on trial, the rules of law so defined should be applied to the particular state of facts proved. The charge here given embraced murder in the first and second degrees, manslaughter and self-defense, following the form given by Judge White, and is general enough to cover almost any case which involves these phases. But the jury were not instructed adequately on the crucial point in this case. So far as the State's case is concerned, the facts suggest the subject of mutual combat. If the parties met at the bridge for the purpose of engaging in a mutual combat, or if that was the purpose which actuated the defendant in going there, and he waited for his adversary (the deceased) to come, then his right of self-defense would be entirely cut off. If, on the other hand, defendant did not go to the bridge for the purpose of engaging in a difficulty, but for the purpose of settling the dispute between him and deceased in a peaceable and *23 friendly manner, and the deceased was the aggressor, and made the first assault on him, in such manner as to cause him to reasonably believe that his life was in danger, or his person in danger of serious bodily injury, then his right of self-defense was complete. If, however, the attack on him was not such as to reasonably cause him to believe that his life was in danger, or his person in danger of serious bodily injury, he would have a qualified right of self-defense, — that is, he would be authorized to use all the force necessary to repel the assault being made on him, — and in such case would only be responsible for the use of more force than was reasonably necessary. The questions above discussed are not raised, and we only make these observations in view of another trial. The judgment is reversed and the cause remanded.
Reversed and remanded.
