Gus. Rutherford v. The State, 15 Tex. Ct. App. 236

ON MOTION FOR REHEARING. Willson, Judge. On a former day of this term the judgment in this case was affirmed without a written opinion. When the case was submitted it was upon brief for the State only, there being no appearance for the defendant by brief or otherwise.

Upon our examination of the-case at that time, finding no exceptions in the record to the charge of the court, and that no special charges had been requested by the defendant, although we believed the charge should have instructed the jury upon the law of manslaughter, we were of the opinion that the omission to do so, not being excepted to, was not such error as was calculated to injure the rights of the defendant, and did not, therefore require a reversal of the judgment.

On this motion for rehearing counsel for defendant has, by an able brief, called our attention more particularly to the questions in the case, and upon a re-examination of the evidence in the case, and of the authorities cited by counsel, we are convinced that our -former view and disposition of the case were erroneous, and we therefore grant the motion for rehearing, and set aside the judgment of affirmance.

Upon a careful review of the facts in the case, we are of the opinion that a charge upon the law of manslaughter was required, and that the failure of the court to give such charge was calculated to prejudice the rights of the defendant. It is true that the attention of the court was not called to this omission, either by exception to the charge or by charges requested, but it is made a ground for new trial, and being such error, in otir judgment, as was well calculated to injure the rights of the defendant, we cannot refuse to consider it.

That our opinion may be understood, we will recite some of the testimony in the case, substantially, as we find it in the record: Deceased, defendant and séveral others were in a saloon, in passing deceased the defendant stumbled over his (deceased’

s) feet, and deceased cursed him and called him a d—d s—n of a b—h. Defendant asked deceased to excuse him, but deceased kept on cursing him, although persons present tried to quiet him and prevail upon him to desist.

Deceased handed a bottle of whisky to one of the persons present, and then walked up to defendant and cursed him again, and then turned his back on defendant as if to walk away, at the same time putting his hand into his pocket and drawing from thence a knife, which he seemed to be trying to open with both hands, and he was in the act of again turning upon the defendant—had turned about half way around—when defendant, without moving from his position, seized a piece of timber, which was near by, and struck deceased osie blow on the head with it, and then threw down the piece of timber and walked out of the house.

The blow thus inflicted produced the death of deceased in a few minutes. Deceased was a notoriously desperate man. This was his general reputation. Defendant is an amiable, peaceable, quiet citizen. When deceased fell a knife was found in his hand, but it was unopened. There is but little conflict in the evidence, and the above statement of the case is not materially contradicted by any of the testimony. Would not these facts justify the conclusion that the homicide might have been- committed under the immediate influence of sudden passion arising .from an adequate cause?

If the defendent struck the mortal blow, acting under the immediate influence of sudden passion, either anger, rage, sudden resentment, or terror, rendering his mind incapable of cool reflection, and if this sudden passion arose from an adequate cause, then the homicide would not be murder, but manslaughter. Was there adequate cause to justify sudden passion sufficient to render the mind incapable of cool reflection? By adequate cause the law means such cause as would commonly produce passion in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.

Here the defendant had been grossly insulted and abused by the language of the déceased, and these insults and abuse were being continued, and deceased was in the act apparently of preparing to make a deadly assault upon defendant with a knife; and, besides this, the deceased was a notoriously desperate man. Such being the facts, we think it very natural that a person of ordinary temper would be aroused to a degree of sudden passion sufficient to render his mind incapable of cool reflection.

It would require, we think, a man of extraordinary coolness and bravery to remain free from sudden and violent passion, and to refrain from prompt and effective action under such circumstances. While such a state of facts may not constitute justifiable homicide, still we think they would well warrant a jury in finding that they did not constitute murder, and therefore the issue of manslaughter should have been submitted in the charge. Opinion delivered December 5, 1883. “Every theory presented by evidence in the case demands of the court a. charge thereon, whether strongly' or weakly supported by the testimony.

If there be evidence tending to support it, the law must be directly and pertinently applied thereto. The jury, and the jury alone, must pass upon the strength of the evidence which tends to support the theory. Nor can the evidence be so full and complete in favor of one theory as to preclude evidence, or excuse the court in refusing or failing to charge the law relative to another theory.” (McLaughlin v. The State, 10 Texas Ct.

App., 340.) We are of the opinion that the facts of this case did not require a charge upon the law of negligent homicide, and that the court therefore did not err in omitting to give such charge. While the charge of the court upon self-defense is very brief, still it is comprehensive, and moré favorable to the defendant, perhaps, than the rules of law would warrant, and he has no good reason to complain of it. We shall not pass upon the question as to the sufficiency of the evidence to support a conviction for any degree of homicide.

That is a question primarily for the jury to determine, under proper instructions from the court. Because the court erred in failing to charge the law of manslaughter, and because we think this omission in the charge was calculated to injure the rights of the defendant, the judgment is reversed and the cause remanded. Reversed and remanded.