HENDERSON, Judge.
The appellant in this case was convicted of murder in the first degree, and his punishment assessed at death, and from the judgment of the lower court he prosecutes this appeal.
In order that the questions raised by the assignments of error may be properly discussed, we will briefly state the substance of the evidence in the case. The evidence in this case for the State shows that the defendant and his wife, a short time previous to the homicide, lived on a farm of the deceased, on Bed Biver, in Cooke County. Said farm seems to have been under the supervision of a couple of sons of the deceased. The defendant was there in the capacity of an employe. Some difference occurred between the defendant and sons of deceased, and about ten days before the homicide deceased went from his home place, which was situated some eight or ten miles from his farm, down to his farm, to bring a load of corn home, and while there endeavored to adjust the difficulty between his. sons and defendant, but failed to do so. The defendant and his wife moved off the place to Montague County. On the day before the killing defendant left his home, carrying a pistol with him, but not stating where he was going. He came to Gainesville, and there borrowed a gun from one Slayton, stating that he wanted it to kill some turkeys. The gun was a Winchester rifle. Where he staid that night the record does not inform us, but early next morning the evidence shows that he was at the home of deceased near Calisburg, in Cooke County, some miles from Gaines-ville. Deceased, with his wife and a minor son, were the only persons living at this place. Early on the morning of the 12th of April, as was his custom, deceased got up and went to his barn, near by, for the purpose of feeding his horse. What occurred at this juncture is best stated in the language of the witnesses. Jesse Murrell, the minor son of the deceased, states: “My father and mother had gotten up before me, and gone out of the room. Just as I was getting up I heard two shots fired. I thought they were at the barn. I could see the barn from the north porch. I ran out on the north porch. Just as I got out where I could see the barn, I heard my mother’s voice crying out, ‘Don’t, Crews, don’t!’ Immediately two more shots were fired in rapid succession in the barn. I saw no one about the barn at the time.
I at once ran to Mr. Walter Clement’s house, which is about 300 yards northwest from our house. I found Mr. Reagan Clements, as well as Mr.1 Walter Clements, there. We at once returned to the barn. When we got there, we found my father lying at the door of the barn, with his body about halfway in the barn, his feet being in the barn and his head outside. He was lying nearly on his back, kind of raising his head up on his hands. My mother was dead, lying further in the barn than my father, with her head in nearly the opposite direction from his. My father was not dead. He was able to talk, and appeared to know what he was saying. He said he was goitig to die. Mr. Reagan Clements walked up to my father, and spoke to him, and said, ‘Tom, who did this?’ My father replied, ‘Crews, Crews, Crews,’ The feed basket, which we used to carry corn from the crib to the barn, was near my father’s side, about half full of corn. In it, and on top of the corn, I saw my father’s pocketbook, opened. I knew it was his pocketbook. It was a leather pocketbook, which closed with a strap. The pocketbook was open, and no money in it. When I picked it up, he said, ‘Yes, Crews robbed me, and got on old Joe, and is gone.’ My father lived about three-quarters of an hour after he was shot. He was moved into the house before he died.”
His testimony was corroborated as to what occurred after they got back to the barn by the two Clementses. The defendant was not there when they got back. The horse Joe, of deceased, and his saddle, were gone. There is testimony of another witness, who lived some few miles from the deceased’s house, towards the river, that a half hour after sunup he saw defendant on the horse Joe, riding in a gallop towards the river. It was also shown that in a corner of the barn, where hay had been stored, the hay had been pressed down, and a hole made, as if some one had been standing there for sometime; and from such position the defendant would have a view of persons approaching the barn. It was further in testimony that the defendant, while he worked on deceased’s place, was accustomed to wear a long beard that came down on his breast, but that when he came down on this occasion he had no beard. On the part of the defendant, it was shown by his wife, that when deceased came down to the farm on the river, a week or ten days before the killing, to settle the dispute pending between the defendant and sons'of the deceased, deceased made indecent proposals to her, which she declined, and that at one time, while they were in the cellar of the house, deceased, against her will, caught her, and kissed her on the cheek. The record shows that she informed her husband, after they had removed from the place, of this conduct of the deceased, and that this was the first time defendant and deceased met after he had been so informed of said insults towards his wife. The defendant also introduced some evidence of insanity in his family.
The appellant assigns as error the failure of the court to give a charge on circumstantial evidence. While it is true in this case that no witnesses testify that they saw the act of killing, yet the facts and
circumstances of this case are of a character to place defendant in such proximity and juxtaposition to the fact of killing as to render such a charge unnecessary, and besides, the statements of deceased and Mrs. Crews were in the nature of positive evidence. Baldwin v. The State, 31 Texas Crim. Rep., 589; Montgomery v. The State (Texas Criminal Appeals), 20 S. W. Rep., 926; Adams v. The State, ante, p. 470. The little boy in the house heard his mother, just before she received her death-wound, cry out to Crews not to shoot; and the father, as soon as they went to him, as a part of the res gestee, when asked who did it, said that it was Crews, and that he robbed him, and rode off on his horse Joe; and he was seen a short time thereafter, near the scene of the homicide, riding the deceased’s horse, with his gun.
In the court’s fourth subdivision of the charge, in treating upon express malice, the court informs the jury: “If the design to kill or to inflict the serious bodily harm which might probably end in death was formed while the mind was not in a sedate and deliberate state, but while it was inflamed and excited, then the killing could not be upon express malice, unless sufficient time should elapse, between the formation of the design to kill or to inflict the serious bodily harm above mentioned and the act of killing, for the mind of the slayer to cool, and for him to deliberate upon the character of the act about to be committed before the killing takes place. But in such case the law prescribes no particular time which shall elapse between the formation of the design to kill and the act of killing It only requires that sufficient time shall elapse to enable the slayer to reflect upon the character of the act about to be committed and its probable consequences.” This case, in our opinion, does not involve a question of cooling time; and the charge, if it be conceded to be correct in the abstract, has no application to the case on trial.
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HENDERSON, Judge.
The appellant in this case was convicted of murder in the first degree, and his punishment assessed at death, and from the judgment of the lower court he prosecutes this appeal.
In order that the questions raised by the assignments of error may be properly discussed, we will briefly state the substance of the evidence in the case. The evidence in this case for the State shows that the defendant and his wife, a short time previous to the homicide, lived on a farm of the deceased, on Bed Biver, in Cooke County. Said farm seems to have been under the supervision of a couple of sons of the deceased. The defendant was there in the capacity of an employe. Some difference occurred between the defendant and sons of deceased, and about ten days before the homicide deceased went from his home place, which was situated some eight or ten miles from his farm, down to his farm, to bring a load of corn home, and while there endeavored to adjust the difficulty between his. sons and defendant, but failed to do so. The defendant and his wife moved off the place to Montague County. On the day before the killing defendant left his home, carrying a pistol with him, but not stating where he was going. He came to Gainesville, and there borrowed a gun from one Slayton, stating that he wanted it to kill some turkeys. The gun was a Winchester rifle. Where he staid that night the record does not inform us, but early next morning the evidence shows that he was at the home of deceased near Calisburg, in Cooke County, some miles from Gaines-ville. Deceased, with his wife and a minor son, were the only persons living at this place. Early on the morning of the 12th of April, as was his custom, deceased got up and went to his barn, near by, for the purpose of feeding his horse. What occurred at this juncture is best stated in the language of the witnesses. Jesse Murrell, the minor son of the deceased, states: “My father and mother had gotten up before me, and gone out of the room. Just as I was getting up I heard two shots fired. I thought they were at the barn. I could see the barn from the north porch. I ran out on the north porch. Just as I got out where I could see the barn, I heard my mother’s voice crying out, ‘Don’t, Crews, don’t!’ Immediately two more shots were fired in rapid succession in the barn. I saw no one about the barn at the time.
I at once ran to Mr. Walter Clement’s house, which is about 300 yards northwest from our house. I found Mr. Reagan Clements, as well as Mr.1 Walter Clements, there. We at once returned to the barn. When we got there, we found my father lying at the door of the barn, with his body about halfway in the barn, his feet being in the barn and his head outside. He was lying nearly on his back, kind of raising his head up on his hands. My mother was dead, lying further in the barn than my father, with her head in nearly the opposite direction from his. My father was not dead. He was able to talk, and appeared to know what he was saying. He said he was goitig to die. Mr. Reagan Clements walked up to my father, and spoke to him, and said, ‘Tom, who did this?’ My father replied, ‘Crews, Crews, Crews,’ The feed basket, which we used to carry corn from the crib to the barn, was near my father’s side, about half full of corn. In it, and on top of the corn, I saw my father’s pocketbook, opened. I knew it was his pocketbook. It was a leather pocketbook, which closed with a strap. The pocketbook was open, and no money in it. When I picked it up, he said, ‘Yes, Crews robbed me, and got on old Joe, and is gone.’ My father lived about three-quarters of an hour after he was shot. He was moved into the house before he died.”
His testimony was corroborated as to what occurred after they got back to the barn by the two Clementses. The defendant was not there when they got back. The horse Joe, of deceased, and his saddle, were gone. There is testimony of another witness, who lived some few miles from the deceased’s house, towards the river, that a half hour after sunup he saw defendant on the horse Joe, riding in a gallop towards the river. It was also shown that in a corner of the barn, where hay had been stored, the hay had been pressed down, and a hole made, as if some one had been standing there for sometime; and from such position the defendant would have a view of persons approaching the barn. It was further in testimony that the defendant, while he worked on deceased’s place, was accustomed to wear a long beard that came down on his breast, but that when he came down on this occasion he had no beard. On the part of the defendant, it was shown by his wife, that when deceased came down to the farm on the river, a week or ten days before the killing, to settle the dispute pending between the defendant and sons'of the deceased, deceased made indecent proposals to her, which she declined, and that at one time, while they were in the cellar of the house, deceased, against her will, caught her, and kissed her on the cheek. The record shows that she informed her husband, after they had removed from the place, of this conduct of the deceased, and that this was the first time defendant and deceased met after he had been so informed of said insults towards his wife. The defendant also introduced some evidence of insanity in his family.
The appellant assigns as error the failure of the court to give a charge on circumstantial evidence. While it is true in this case that no witnesses testify that they saw the act of killing, yet the facts and
circumstances of this case are of a character to place defendant in such proximity and juxtaposition to the fact of killing as to render such a charge unnecessary, and besides, the statements of deceased and Mrs. Crews were in the nature of positive evidence. Baldwin v. The State, 31 Texas Crim. Rep., 589; Montgomery v. The State (Texas Criminal Appeals), 20 S. W. Rep., 926; Adams v. The State, ante, p. 470. The little boy in the house heard his mother, just before she received her death-wound, cry out to Crews not to shoot; and the father, as soon as they went to him, as a part of the res gestee, when asked who did it, said that it was Crews, and that he robbed him, and rode off on his horse Joe; and he was seen a short time thereafter, near the scene of the homicide, riding the deceased’s horse, with his gun.
In the court’s fourth subdivision of the charge, in treating upon express malice, the court informs the jury: “If the design to kill or to inflict the serious bodily harm which might probably end in death was formed while the mind was not in a sedate and deliberate state, but while it was inflamed and excited, then the killing could not be upon express malice, unless sufficient time should elapse, between the formation of the design to kill or to inflict the serious bodily harm above mentioned and the act of killing, for the mind of the slayer to cool, and for him to deliberate upon the character of the act about to be committed before the killing takes place. But in such case the law prescribes no particular time which shall elapse between the formation of the design to kill and the act of killing It only requires that sufficient time shall elapse to enable the slayer to reflect upon the character of the act about to be committed and its probable consequences.” This case, in our opinion, does not involve a question of cooling time; and the charge, if it be conceded to be correct in the abstract, has no application to the case on trial. In form it is somewhat like the charge in the Jones case, 33 Texas Criminal Eeports, 482; but in that case the court failed to give a charge on manslaugher, as was given in this case.
On the issue presented raising the defense of manslaughter, the court below gave a full and correct charge to the jury applicable to the evidence in the case. The court told the jury, that insulting words or conduct of a person killed towards a female relative of the party guilty of the homicide will constitute “adequate cause, provided the killing occurs immediately upon the happening of the insulting conduct or the uttering of insulting words, or so soon thereafter as the party killing may meet with the person killed, after having been informed of such insults.” And the court followed this up with a charge directed to the issue, as follows: “If you believe that the defendant killed the said Murrell by shooting him with a gun; and if you further find and believe from the evidence, that prior to such killing the said Murrell had used any insulting words to the wife of the defendant, or had indulged in any insulting conduct towards her, or if the defendant believed that said Murrell had done so, and acted upon such belief; and if you fur
ther believe, that the defendant killed said Murrell immediately upon the happening of such insulting conduct or the uttering of such words, or so soon thereafter as he met said Murrell after having been informed thereof, if he was so informed; and if you further believe from the evidence, that said insulting words and conduct, or either, was the cause which induced the defendant to kill said Murrell, if he did kill him; and if you believe further, that at the time of the killing the defendant was laboring under a degree of anger, rage, resentment, or terror, such as would commonly, in a person of ordinary temper, render the mind incapable of cool reflection, then you will find the defendant guilty of manslaughter, and assess his punishment at, ’ ’ etc. This charge properly and pertinently instructed the jury upon the evidence in the case raising the issue of manslaughter; and, in our opinion, although the other charge was not called for, yet it could not possibly have confused or misled the jury.
After laying the predicate, while the wife of defendant was on the stand, as to statements made by her when asked if she had been mistreated by the deceased, and in reply thereto she said, “If they mistreated her husband, they mistreated her,” there was no error in the action of the court in limiting this testimony to be considered by the jury merely as going to her credit. And also, as the defendant had introduced testimony on the question of insanity, the court did not err in submitting this issue to the jury. Yor did the court err, as insisted by counsel for appellant, in refusing to give in charge to the jury the question of insanity in connection with “adequate cause.”
The court instructed the jury in the twentieth subdivision of the charge as follows: “You are further instructed, that you are not trying defendant for killing Mrs. Murrell, if he did kill her, and can not find him guilty in this case for such killing, if any there was, but the same can only be considered by you as it may throw light upon the circumstances of the killing of Thomas Murrell, if you find that he was killed, and the motive therefor, if you should believe that the same does throw any such light thereon.” The defendant assigns this as error. It is sufficient to say in this regard, that the killing of Mrs. Murrell was a part of the res gestee, and as such was admissible in evidence; and the court properly instructed the jury, that they could only consider such act of killing for the purpose of ascertaining the motive or intent with which defendant may have acted in the killing of Thomas Murrell, the case for which he was then on trial, and the same was not a charge upon the weight of evidence.
A number of other errors are assigned, which it is deemed unnecessary to notice. In our opinion, the charge of the court fairly and correctly submitted the issues in the case. There were but two: The one presented by the State, which characterized the homicide as murder in the first degree, by preparing himself with arms, by lying in wait, and taking undue advantage of his unsuspecting victim. The other was, that he may have been actuated in perpetrating the homi
cide by passion engendered on account of an insult offered by deceased' to his wife. But the jury do not appear to have taken the latter view of the case. They either did not believe that deceased had offered any insults to the wife of defendant, or if he had, that same did not actuate defendant in the killing. Or they may have believed that, notwithstanding said insults, the defendant acted with such cool, calculating malignity as indicated that he was not then laboring under such passion as rendered him incapable of cool reflection. His whole conduct was not of that character to convince the ordinary juror that he was then avenging any insult offered to his wife. Besides preparing himself, he lay in wait for his victim, doubtless during all the hours of the night, knowing, as was his custom, that he would make his appearance in the early morning, and not only took advantage of him, and slew him, but he robbed him of his money and of his horse; and, instead of standing up before the world and avowing his deed, he concealed his identity, and ignominiously sought safety in flight. Such was the conduct of an assassin, and not of a man who strikes for the purity of his family; and no doubt the jury took this view of the killing, and in our opinion they were amply justified in doing so.
There being no errors in the record, the judgment of the lower court is affirmed.
Affirmed.
Davidson, Judge, absent.