Clanton v. State

20 Tex. Ct. App. 615, 1886 Tex. Crim. App. LEXIS 86

Opinion

Willson, Judge.

I. In applying the law of manslaughter to the facts of the case, the learned judge in his charge uses the following language: “If the jury find from the testimony that, at the time and place as alleged in the indictment, the defendant unlawfully and voluntarily shot and killed the said Charles Cook, and that, at the time of such shooting the defendant was under the immediate influence of sudden passion, arising from insulting words or conduct by Cook towards the step-daughter of defendant, and under his protection at the time,” etc. This particular instruction ivas excepted to by the defendant at the time it was given to the jury, and a proper bill of exception was reserved.

It will be noticed that the instruction requires that the stepdaughter of the defendant should, at the time of the killing, have been under the defendant’s protection in order that the insult to her should have the effect to reduce the homicide to manslaughter. In this view' of the law we cannot agree with the learned judge. One of the adequate causes named in the statute which will reduce a homicide to manslaughter is “ insulting words or conduct of the person killed towards a female relation of the party guilty of the homicide.” (Penal Code, art. 597, subdiv. 4.)

It is not required that the female insulted, if a relative of the slayer, should be under his protection, either permanent or temporary, at the time either of the insult or killing. It is sufficient if she be a relative. It is only in case that the insulted female is not a relative of the slayer that the law requires that she should be under his protection. (Penal Code, art. 601.) Any female under his protection at the time of the killing is included within the meaning of relation. In this instance, the female whom it is claimed the deceased insulted was the step-daughter of the defendant. She was, therefore, a female relation of the defendant, and, being such, it made no difference whether or not she was under his protection at the time of the killing. That she must be regarded as a female relation of the deféndant, we think there can be no question. (Penal Code, art. 330; Compton v. The State, 13 Texas Ct. App., 271; McGrew v. The State, id., 340; Nance v. The State, 17 Texas Ct. App., 385.) The marriage relation still subsisted between the defendant and her mother, and, as long as such marriage relation continued, the relationship of step-father and step-daughter existed. If such marriage relation-had been dissolved by death or divorce, then the view entertained by the learned trial judge would, we think, have been correct.

[Opinion delivered March 17, 1886.]

II. As the charge referred to above is erroneous, and as it was excepted to promptly and properly, we have no discretion with reference to it. We are not at liberty to consider its probable effect upon the minds of the jury, or whether it was demanded by the evidence. However immaterial may be the error, we must set aside the conviction because of it. Such is the language of our statute and the rule declared by the decisions. (Code Crim. Proc., art. 685; White v. The State, 17 Texas Ct. App., 188; Buntain v. The State, 15 Texas Ct. App., 485; Niland v. The State, 19 Texas Ct. App., 166.)

We have duly considered the other assignments of error presented by counsel for defendant, and are of the opinion that none of them are well taken, and, but for the error in the charge above discussed, we would affirm the conviction; but because of that error we must set it aside. The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.