West v. State
2 Tex. Ct. App. 460
Tex. App.
1877
Check Treatment
Ector, P. J.

The defendant was tried at the October term, 1875, of the district court of Travis county, charged with the murder of George McNelly. The jury found him guilty of murder in the first degree, and assessed his punishment at imprisonment in the penitentiary “ for the term of his natural life.” From the judgment of the court below the plaintiff has appealed, and rests his case before this court upon the first five errors assigned.

“ 1st. The court erred in admitting the testimony of Joel McGee, Eliza Kelly, and Julia McGee, touching conversations had by said witness with deceased, George McNelly, on the morning of, and before, the killing, as shown by defendant's bill of exceptions.” We can see no injury that was done by the admission of this evidence. The same facts had already been testified to by two witnesses, and allowed to go to the jury without objection.

*474The theory of the defense was that deceased had made threats to take the life of the defendant; that he had armed and prepared himself, and left home on the morning of the killing, to carry his threats into execution, and then leave: the country. It was competent to prove what he said and did at the time he was in the act of leaving home, on his-journey, expressive as to where he was going. Such declarations, made at the time of the transaction and expressive-of its character, are regarded as “ verbal acts indicating a present purpose and intention,” and are therefore admitted in proof, like any other material facts. 1 Greenl. on Ev., sec. 108; 1 Ph. on Ev. 150, title Declarations, part of the Res Gestæ.

The 2d assignment of errors is that the court erred in permitting the district attorney to ask Caroline McNelly certain questions, and in permitting her to answer the same, as shown by defendant’s 2d bill of exceptions. Caroline McNelly was the wife of the deceased. There was no disposition on her part to keep back anything she knew, or to-refresh her recollection.

In the direct examination of a witness it is not allowed to put to him or her what are called leading questions—that is, questions which suggest to the witness the desired answer.. This rule is to be understood in a reasonable sense. To-shorten the examination, and to bring the witness as soon as-possible to the material points on which he is to speak, the-counsel may lead him to that length, and may, by the permission of the court, recapitulate to him the acknowledged facts of the case which have already been established ; and in some cases leading questions are permitted even in a direct examination. The correct rule on this subject is clearly laid down by Mr. Greenleaf. 1 Greenl. on Ev., secs. 434, 435, 447.

It became a material inquiry to know whether there was any pistol lying on the ground by the side of the deceased *475soon after he was shot. Several witnesses introduced by the defendant had testified that they saw a pistol lying near the right arm of the deceased. The first witness introduced by the state, and the only witness who was present at the time of the homicide, testified that the deceased commenced the difficulty, and assaulted the defendant by shooting at him with a pistol. The questions objected to do not suggest the answer desired; and, while we believe they should have been differently framed, still their admission in the form asked, if erroneous at all, is not such an error as would require a reversal of the case.

The 3d and 4th assignments of error are as to the charge of the court, and mainly that the court did not give a charge on manslaughter. There is quite a conflict in the evidence. The 7th subdivision of the charge of the court is as follows: “Every person has a right to defend himself against an unlawful attack upon his person, of such a character as to endanger his life or limb, and, if he has-reasonable cause to apprehend danger to his life or limb from an attack which is made upon him, he may kill his assailant if it be necessary to protect himself, and such killing would not be murder. But, when a person is attacked,, his right to resist ceases when the attack ceases, and he has no right to kill after the danger to life or limb is over.”

The counsel for the defense insists that the facts in the-case demanded that the clause of the charge which we have copied above should have been supplemented and explained by a clause to the effect that, “ if from the evidence they believed that the attack was only suspended until McNelly could reach a point in adjacent timber where he would be protected and sheltered, and from which McNelly intended to continue an attack already commenced by him, then defendant was not bound to wait until McNelly reached the timber and renewed his attack, but defendant had the right *476to anticipate the purpose of McNelly, and take such steps as were necessary to avert it.”

Taking the clause as it stands in the charge, qualified as it is by the last part of it, in connection with the testimony, we do not believe that the jury were misled by it, or from it would naturally conclude that the fact of McNelly’s retreat after the first shot was proof enough that the attack had ceased on his part, and that all danger to the appellant had passed. The person attacked, not only need not retreat, but may pursue his adversary till he find himself out of danger; and, if in a conflict between them he happen to kill, such killing is justifiable. “ The right of self-defense in cases of this kind is founded on the law of nature, and is not, nor can be, superseded by any law of society.” 1 Whart. Cr. Law, 1019.

The gravest error, in our opinion, which was committed on the trial of the cause was the failure of the lower court to charge on the subject of manslaughter. This is a case which, from its peculiar facts and circumstances, required the issue of manslaughter to be submitted. The record is entirely silent as to any disposition on the part of the defendant, prior to the killing, to inflict any personal injury on the deceased.

If the deceased attacked the defendant, and, after shooting at him, he, the deceased, unequivocally retreated and quit the combat as far as he could, and the defendant then, under the immediate influence of sudden passion, produced in his mind by the violent assault made upon him by McNelly, fired upon and killed McNelly, then he would not be guilty of murder, but of manslaughter.

If this conduct on the part of the deceased had the effect to produce sudden passion in the mind of West, rendering it incapable of cool reflection, and if the killing was done under the immediate influence of that passion, then the kill*477ing would only be manslaughter. As to whether the killing was done under the immediate influence of sudden passion, rendering the mind incapable of cool reflection, arising from an adequate cause, were questions of fact for the jury, and should have been submitted to them.

It may be that the judge below took the view of Paschal’s Digest, Article 2254, that there could be no “adequate cause for passion ” beyond those stated in that Article. If so, he was in error. Our supreme court say: “Articles 2251, 2252, 2253, and 2254, Paschal’s Digest, are explanatory of Article 2250. We do not understand that these explanations and examples are legislative restrictions, and that in no case can a homicide be reduced from'murder to- . manslaughter unless the party can bring himself within the rules and examples given. " We regard the law rather as giving instances or examples by which the mind could be rendered incapable of cool reflection, but that, at least, we must bring each case to the test to be found in Article 2250, Paschal’s Digest.” Johnson v. The State, 43 Texas, 615.

For the failure of the court to give a charge on the subject of manslaughter, the judgment is reversed and the cause remanded.

Reversed and remanded.