W. R. Orman v. The State, 24 Tex. Ct. App. 495

Willson, Judge. This cause was before us, upon a former appeal, upon substantially the same facts and charge of the trial court, and the judgment of conviction was reversed and the cause remanded for another trial, because of an error in the charge upon the issue of self defense. (Orman v. The State, 22 Texas Ct. App., 604.) We held, on the former appeal, that it was error to charge with respect to the character of self-defense defined in

article 572 of the Penal Code, because the facts of the case did not demand and warrant such a charge, for the reason that, if deceased made an attack upon the person of the defendant, it was a murderous attack coming clearly within the provisions of

article 570 of the Penal Code, and hence that

article alone was applicable to the evidence. Upon the issue of self defense, the evidence in the record now before us is in no material particular different from that which was before us on the first appeal, and yet the learned trial judge gave in charge to the jury the substance of

article 572, which portion of his charge was promptly excepted to by the defendant. We still entertain the opinion that such charge was inapplicable to the facts of this case, calculated to confuse and mislead the jury, and injuriously to affect the defendant’s rights. As made by the evidence, the issue of self defense was governed by the provisions of

article 570 alone, and

article 572 should not have been given in charge. (Kendall v. The State, 8 Texas Ct.

App., 569.) In the case just cited, it is said: “If the attack of the person slain was manifestly with the intent to murder or maim—that is, made with weapons or other means calculated to produce either of those results—then there is no occasion to instruct a jury as to the law which obtains in case the attack was of a milder character, because such law is not applicable to the case, and can subserve no purpose other than to confuse the jury.” It is manifest, from the evidence in this case, that if the deceased, at the time he was shot by the defendant, was making any attack upon the defendant, it was an attack with a deadly weapon, and made with the intent to kill the defendant or inflict upon him serious bodily harm.

There is no evidence even tending to show an attack of a milder character. As a part of the law of self defense, the charge of the court with reference to threats made by deceased against the defendant is complained of by defendant, and upon this subject a special instruction was requested by counsel for the defendant, and was refused by the court.

After a careful examination of this portion of the court’s charge, we are of the opinion that it is full, fair and correct, applicable and pertinent to the evidence, not only embodying the law as expressed in the refused special instruction, but more favorably to 'the defendant than in said special instruction. Serious objections are urged by counsel for the defendant to the court’s charge upon the issue of manslaughter. Except in two particulars, we are of the opinion that the charge Upon manslaughter is not materially erroneous.

It restricts the “adequate cause” to the insulting language used by deceased about the mother and sister of the defendant. This, we think, was error. It was in evidence that the deceased, for several hours immediately preceeding the killing, was searching for the defendant with the avowed purpose of killing him on sight, and was armed with a pistol, with which he stated he intended to kill the defendant. Defendant had been informed of the threats and conduct of the deceased just prior to the killing.

It should have been submitted to the jury whether these facts alone did not constitute “adequate cause,” or, if not, whether in connection with the insulting language used by deceased about defendant’s mother and sister, there was not “adequate cause.” Any condition or circuihstance which is capable of creating sudden passion, rendering the mind incapable of cool reflection, may be “adequate cause,” and where the evidence shows a number of conditions or circumstances tending either singly or collectively to show “adequate cause,” the jury should not be restricted by the charge to a consideration of a single condition or circumstance, but should be directed to consider them all in determining the question of “adequate cause.” (Williams v.

The State, 15 Texas Ct. App., 617; Neyland v. The State, 13 Texas Ct. App., 536; Miles v. The State, 18 Texas Ct. App., 156; Howard v. The State, 23 Texas Ct. App., 265.) The other error in the charge on manslaughter is that portion of said charge which instructs the jury as to cooling time. That portion of the charge was, we think, inapplicable to the facts, and not the law of the case. In other respects, we* are not prepared to say that the charge upon manslaughter, or upon any other issue in the case, is erroneous. But, for the errors we have mentioned, the conviction must be set aside.

With respect to the testimony of the witness Herring, we held on the former appeal that it was not privileged and was properly admitted, and we adhere to that view. We do not think the court abused its discretion in refusing to grant defendant’s motion for a new trial upon the grounds of the disqualification of the juror McCrary, and the alleged misconduct of the jury.

It satisfactorily appears that the defendant was not injured in his rights by reason of said juror having passed upon the case, and that Davis, the newspaper reporter, did not, by any misconduct of the jury, obtain information about the verdict, but that he obtained all the information he had in regard to the verdict by the low and disreputable method of eavesdropping, and reported the verdict to the newspaper he represented, without knowing whether his report was true or false.

This indefensible conduct of the reporter Davis was a flagrant contempt of the court, and a most reprehensible invasion of the precincts of justice, which should have been, if it was not, promptly and severely punished by the trial court. The remarks of counsel for the prosecution in his closing address to the jury, and which are presented in the record by a bill of exception, were certainly unwarranted by any evidence in the case, and were discourteous to opposing counsel. The learned trial judge properly and promptly reprehended the counsel for making the remarks, and instructed the jury to disregard them.

We will express no opinion as to what would be our disposition of this case were these improper remarks the only error disclosed by the record. Opinion delivered December 16, 1887. The judgment is reversed and the cause is remanded. Reversed and remanded.