12 S.W.2d 221 | Tex. Crim. App. | 1928
Appellant appeals from a conviction for manslaughter, with punishment fixed at two years in the penitentiary.
Appellant was indicted for murder. He introduced many witnesses whose testimony seemed to the jury sufficient to justify them in concluding that at the time he killed deceased his mind was agitated by information of statements made by deceased which reflected, if true, an undue intimacy between deceased and the wife of appellant. It is not deemed necessary to set out the facts at length.
There are three bills of exception in the record. Bills Nos. 1 and 2 contain recitals of facts and rulings of the court in the rejection of testimony, which testimony, if same had been admitted, would have had no other effect than to reduce the case to manslaughter. The verdict of the jury having effectually settled that proposition, neither of said bills could be held to present error of a reversible character.
Appellant reserved numbers of exceptions to the charge of the court, which appear in bill of exceptions No. 3. Among others we find exceptions to the failure of the court to charge on the presumption arising from the use of a deadly weapon in the hands of deceased; also because the charge on uncommunicated threats was erroneous in that it restricted the jury's consideration of such *139 threats to a determination of the condition of the mind of deceased. The learned trial judge charged on self-defense, evidently regarding this issue as raised by the testimony. The mother of appellant swore that he returned home a few minutes after having gone away in his car, and that upon his return he was much excited and said to her: "I had to kill Ples Chamberlain to save my life; he was shooting at me." Mr. Burdette swore for the defense that he heard the shooting at the time of the homicide and it sounded as if some shots were louder than others, as though not all came from the same gun. Appellant used a shot gun. Six pistol cartridges were found in a pocket of deceased after his death; a brother of the deceased was the first person to arrive at the scene of the shooting, and some testimony offered by the defense was regarded as indicative of the fact that said brother was hiding a pistol when seen by another witness who presently came up.
Art. 1223 P. C., provides that when a homicide takes place to prevent murder, etc., if the weapon or means used by the party attempting or committing such murder, etc., are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury. In many cases cited by Mr. Branch in his Annotated P. C., Sec. 1918, and by Mr. Vernon in his annotation of said Art. 1223, supra, it has been held that it is erroneous for the trial court to fail to charge this presumption when the facts call for such charge. In Smith v. State,
On the subject of uncommunicated threats, the court charged the jury as follows:
"If you find and believe from the evidence, that the deceased had made threats to take the life of the defendant, or to do him serious *140 bodily injury, and that such threats had not been communicated to the defendant, then they will only be considered by you, if considered at all, as a circumstance tending to explain the action of the deceased at the time of the killing, if they do so."
This was also excepted to on the ground that appellant was entitled to have the jury told that uncommunicated threats could be considered by the jury in determining who was the aggressor, and who began the difficulty, and also as corroborating the testimony of communicated threats. In his brief appellant cites Sebastian v. State,
For the errors mentioned the judgment will be reversed and the cause remanded.
Reversed and remanded.
