White, Pesiding Judge.
This appeal is from a judgment of conviction for murder of the second degree.
The main errors complained of are the instructions given by the court [429]*429in the charge upon manslaughter and self-defense. The facts in the case clearly raised both of these issues, and demanded of the court a plain and pertinent exposition of the law applicable to the facts which presented them.
Deceased and defendant were strangers, who had never seen each other before the fatal meeting. Defendant came into the room where deceased and another were engaged in a game of billiards. As he entered the door some one pulled oft his hat and placed another upon his head, which he jerked off, and in throwing it from him it fell upon the billiard table. Deceased became enraged, approached defendant, and addressed him in an angry and threatening manner. Defendant apologized; made every effort to pacify him; begged for peace. Deceased would accept no apology, but became more and more enraged and threatening in his words and conduct. He had his billiard cue in his hand, uplifted in a striking attitude, and slapped defendant in the face or on the breast. Defendant was much the smaller man, and unable to contend with him. He gave back, or was pushed back by third parties, until he had retreated, or been, shoved, to the wall. Deceased, too, was shoved back by third parties, who were endeavoring to separate and keep them apart, but deceased pushed by these parties, advanced again with his drawn billiard cue, a deadly weapon, swearing he would kill defendant; and when he, the deceased, had gotten within four or six feet of defendant, but not within striking distance of him, at the time, with said billiard cue, the defendant fired the fatal shots in rapid succession.
There is no evidence that when deceased slapped or tapped defendant on the face or breast he inflicted either pain or bloodshed upon him.
As to what would constitute “ adequate cause” sufficient to reduce the homicide to manslaughter, the court, in the seventh paragraph of its charge, instructed the jury as follows:
“By the expression adequate cause is meant such as would commonly produce a degree of rage, anger, resentment, or terror in the mind of a person of ordinary temper sufficient to render the mind incapable of cool reflection. Insulting words or gestures, however insulting they may be, or an assault and battery, so slight as to show no intention to inflict pain or injury, are not adequate causes sufficient to reduce a homicide from the degree of murder to the grade of manslaughter. But an assault and battery, causing pain or bloodshed, is a sufficient cause to reduce an unlawful homicide to the grade of manslaughter.”
This is the only explanation of adequate cause given. Under the facts it was insufficient, and was calculated to mislead the jury. In like circumstances this identical charge was given by the same learned trial judge in Hawthorne's case, ante, page 212, and. Judge Willson, delivering the opinion of the court, says: “ While this portion of the charge is abstractly correct, it is not applicable to the evidence. There was no [430]*430proof * * * of an assault and battery, causing pain or bloodshed. Under this charge the only ‘adequate cause’ was an assault and battery * * * upon the defendant, causing pain or bloodshed. Of course the jury would conclude under this charge that adequate cause did not exist because no such assault and battery was committed. * * * Adequate cause should not have been so restricted.' Any condition or circumstance which is capable of creating sudden passion sufficient to render the mind of a person of ordinary temper incapable of cool reflection may constitue ‘adequate cause,’ and where the evidence shows a number of conditions or circumstances tending either singly or collectively to constitute what a jury might consider adequate cause, the court should leave the jury at liberty to consider them all in determining whether or not adequate cause existed. * * * The jury should have been left free to determine the question of ‘adequate cause’ from all the facts in evidence tending to show such cause, instead of being restricted as they were by the charge to a single cause, and that a cause not shown by the evidence.” Willson’s crim. Stats., sec. 1030; Orman v. The State, 24 Texas Ct. App., 495; Miles v. The State, 18 Texas Ct. App., 156; Wadlington v. The State, 19 Texas Ct. App., 266; Johnson v. The State, 22 Texas Ct. App., 206.
Defendant’s counsel excepted to the sufficiency of the charge of the court upon manslaughter, and asked the court to give the following requested instructions:
“1. That you may understand the difference between murder in the second degree and manslaughter, you are, in connection with the general charge of the court upon murder in the second degree and manslaughter, further instructed as follows: When an unlawful killing takes place under the immediate influence of sudden passion, and no cause exists which will under the law justify or excuse its commission, then in order to determine whether such homicide is murder in the second degree or manslaughter, the true test is, was there adequate cause to produce such passion? If such adequate cause existed, the homicide, if not justifiable, would be manslaughter. If such adequate cause did not exist, and if the homicide was not justifiable, then it would be murder in the second degree.
“2. And you are further instructed that any condition or circumstance which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment, or terror, rendering the mind incapable of reflection, whether accompanied by bodily pain or not, is in law ‘ adequate cause.’
“3. And in this case if you should find from the evidence that the defendant shot and killed John McLennan, and that at the time he did so the actions and words of said McLennan, taken in connection with the physical strength of the said McLennan, was of such nature as to produce ‘adequate cause,’ as above explained, and did produce such ‘adequate cause’ sufficient to render the defendant’s mind incapable of cool reflec[431]*431tion, and if under the immediate influence of anger, rage, sudden resentment, or terror the defendant shot and killed said John McLennan, and if you are satisfied from the evidence, beyond a reasonable doubt, that the defendant did not kill said McLennan in self-defense, then you should find him guilty of manslaughter.”
These instructions were apt, pertinent, and comprehensive, and it was error for the court to refuse them.
Upon the laAV of self-defense, applicable to the facts of the case as made by the evidence, Ave are also of opinion that the charge of the court Avas insufficient as to apparent danger, and in not instructing the jury that in judging of the danger the facts and circumstances surrounding the defendant must be viewed and estimated from his standpoint, and as they appeared to him.
“If the jury might believe from the evidence that at the time the defendant fired the fatal shot the deceased was making a violent attack upon him, under circumstances which reasonably indicated an intention to murder, maim (or inflict upon him serious bodily injury), and the weapon and the manner of its use were such as Avere reasonably calculated to produce either of those results, then the law presumed that the deceased intended to murder or maim (or inflict such injury upon) the defendant, and the jury should have been so instructed in explicit terms (Penal Code, art.
Free access — add to your briefcase to read the full text and ask questions with AI
White, Pesiding Judge.
This appeal is from a judgment of conviction for murder of the second degree.
The main errors complained of are the instructions given by the court [429]*429in the charge upon manslaughter and self-defense. The facts in the case clearly raised both of these issues, and demanded of the court a plain and pertinent exposition of the law applicable to the facts which presented them.
Deceased and defendant were strangers, who had never seen each other before the fatal meeting. Defendant came into the room where deceased and another were engaged in a game of billiards. As he entered the door some one pulled oft his hat and placed another upon his head, which he jerked off, and in throwing it from him it fell upon the billiard table. Deceased became enraged, approached defendant, and addressed him in an angry and threatening manner. Defendant apologized; made every effort to pacify him; begged for peace. Deceased would accept no apology, but became more and more enraged and threatening in his words and conduct. He had his billiard cue in his hand, uplifted in a striking attitude, and slapped defendant in the face or on the breast. Defendant was much the smaller man, and unable to contend with him. He gave back, or was pushed back by third parties, until he had retreated, or been, shoved, to the wall. Deceased, too, was shoved back by third parties, who were endeavoring to separate and keep them apart, but deceased pushed by these parties, advanced again with his drawn billiard cue, a deadly weapon, swearing he would kill defendant; and when he, the deceased, had gotten within four or six feet of defendant, but not within striking distance of him, at the time, with said billiard cue, the defendant fired the fatal shots in rapid succession.
There is no evidence that when deceased slapped or tapped defendant on the face or breast he inflicted either pain or bloodshed upon him.
As to what would constitute “ adequate cause” sufficient to reduce the homicide to manslaughter, the court, in the seventh paragraph of its charge, instructed the jury as follows:
“By the expression adequate cause is meant such as would commonly produce a degree of rage, anger, resentment, or terror in the mind of a person of ordinary temper sufficient to render the mind incapable of cool reflection. Insulting words or gestures, however insulting they may be, or an assault and battery, so slight as to show no intention to inflict pain or injury, are not adequate causes sufficient to reduce a homicide from the degree of murder to the grade of manslaughter. But an assault and battery, causing pain or bloodshed, is a sufficient cause to reduce an unlawful homicide to the grade of manslaughter.”
This is the only explanation of adequate cause given. Under the facts it was insufficient, and was calculated to mislead the jury. In like circumstances this identical charge was given by the same learned trial judge in Hawthorne's case, ante, page 212, and. Judge Willson, delivering the opinion of the court, says: “ While this portion of the charge is abstractly correct, it is not applicable to the evidence. There was no [430]*430proof * * * of an assault and battery, causing pain or bloodshed. Under this charge the only ‘adequate cause’ was an assault and battery * * * upon the defendant, causing pain or bloodshed. Of course the jury would conclude under this charge that adequate cause did not exist because no such assault and battery was committed. * * * Adequate cause should not have been so restricted.' Any condition or circumstance which is capable of creating sudden passion sufficient to render the mind of a person of ordinary temper incapable of cool reflection may constitue ‘adequate cause,’ and where the evidence shows a number of conditions or circumstances tending either singly or collectively to constitute what a jury might consider adequate cause, the court should leave the jury at liberty to consider them all in determining whether or not adequate cause existed. * * * The jury should have been left free to determine the question of ‘adequate cause’ from all the facts in evidence tending to show such cause, instead of being restricted as they were by the charge to a single cause, and that a cause not shown by the evidence.” Willson’s crim. Stats., sec. 1030; Orman v. The State, 24 Texas Ct. App., 495; Miles v. The State, 18 Texas Ct. App., 156; Wadlington v. The State, 19 Texas Ct. App., 266; Johnson v. The State, 22 Texas Ct. App., 206.
Defendant’s counsel excepted to the sufficiency of the charge of the court upon manslaughter, and asked the court to give the following requested instructions:
“1. That you may understand the difference between murder in the second degree and manslaughter, you are, in connection with the general charge of the court upon murder in the second degree and manslaughter, further instructed as follows: When an unlawful killing takes place under the immediate influence of sudden passion, and no cause exists which will under the law justify or excuse its commission, then in order to determine whether such homicide is murder in the second degree or manslaughter, the true test is, was there adequate cause to produce such passion? If such adequate cause existed, the homicide, if not justifiable, would be manslaughter. If such adequate cause did not exist, and if the homicide was not justifiable, then it would be murder in the second degree.
“2. And you are further instructed that any condition or circumstance which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment, or terror, rendering the mind incapable of reflection, whether accompanied by bodily pain or not, is in law ‘ adequate cause.’
“3. And in this case if you should find from the evidence that the defendant shot and killed John McLennan, and that at the time he did so the actions and words of said McLennan, taken in connection with the physical strength of the said McLennan, was of such nature as to produce ‘adequate cause,’ as above explained, and did produce such ‘adequate cause’ sufficient to render the defendant’s mind incapable of cool reflec[431]*431tion, and if under the immediate influence of anger, rage, sudden resentment, or terror the defendant shot and killed said John McLennan, and if you are satisfied from the evidence, beyond a reasonable doubt, that the defendant did not kill said McLennan in self-defense, then you should find him guilty of manslaughter.”
These instructions were apt, pertinent, and comprehensive, and it was error for the court to refuse them.
Upon the laAV of self-defense, applicable to the facts of the case as made by the evidence, Ave are also of opinion that the charge of the court Avas insufficient as to apparent danger, and in not instructing the jury that in judging of the danger the facts and circumstances surrounding the defendant must be viewed and estimated from his standpoint, and as they appeared to him.
“If the jury might believe from the evidence that at the time the defendant fired the fatal shot the deceased was making a violent attack upon him, under circumstances which reasonably indicated an intention to murder, maim (or inflict upon him serious bodily injury), and the weapon and the manner of its use were such as Avere reasonably calculated to produce either of those results, then the law presumed that the deceased intended to murder or maim (or inflict such injury upon) the defendant, and the jury should have been so instructed in explicit terms (Penal Code, art. 571; Kendall v. The State, 8 Texas Ct. App., 569), and that in such state of case the homicide would be justifiable. Furthermore, upon this subject the charge should have instructed the jury that if the conduct of the deceased at the time of the homicide was such under the circumstances as' to reasonably produce upon the mind of the defendant the belief that the deceased was then about to kill or inflict serious bodily injury upon him, the homicide Avould be justifiable, although in fact the danger was not real, but only apparent.” Jones v. The State, 17 Texas Ct. App., 602; Bell v. The State, 20 Texas Ct. App., 445; Spearman v. The State, 23 Texas Ct. App., 224; Patillo v. The State, 22 Texas Ct. App., 586; Brumley v. The State, 21 Texas Ct. App., 222. Defendant’s special requested instructions, which were refused, called the attention of the court to the defects in the charge above pointed out.
Defendant offered to prove by the witness Wilshire, Avho was standing just to the left of defendant immediately before the shots were fired, that “ the reason he (the witness) passed from defendant’s left side around behind his back to his right side, was that he (witness) expected that deceased would strike at defendant with that billiard cue, and that he feared deceased might miss defendant and hit him.”
An analogous question is discussed in Thomas v. The State, 40 Texas, 36, and it was held that such character of evidence Avas admissible, as tending to explain the effect the acts of the party would likely have produced upon the accused. It was said that “the effect produced on a by[432]*432stander by the conduct of the party would illustrate the effect likely ta be produced on the mind of the accused himself, and we can perceive no good reason why it should not have been allowed.” It was error to reject, the evidence.
For the errors above discussed the judgment is reversed and the cause remanded.
Reversed and remanded.
Hurt, J., absent.