This is the second appeal of this case. The opinion of the court and a full statement of the facts on the first appeal will be found in the 55 Tex.Crim. Rep..
On the trial from which this prosecution is appealed, appellant was in the District Court of Burnet County, on June 5, 1909, found guilty of manslaughter, and his punishment assessed at confinement in the penitentiary for a period of five years. The case from its beginning has been one of the most notable and interesting that has ever been before this court, at least, since my accession to the bench. It has been the subject of repeated argument by eminent and learned counsel, and also the subject of much discussion and sharp difference between the members of this court. As the former opinion will demonstrate, Judge Brooks dissented from the judgment of the court, reversing the case, and on this appeal, our learned Presiding Judge finds himself unable to agree to the disposition which will be made of the case. On account of the retirement of Judge Brooks from the bench, and the disqualification of Judge McCord, who had prosecuted the pleas of the State on the former appeal, the case was, quite a while ago, certified to the Governor, and a request for the appointment of a suitable person to sit with us in the disposition of the case, was made. Responding to that request, the Governor last spring appointed Hon. Thomas B. Love, of Dallas, who, with the court, heard a reargument of the case at length, and it has since then received the individual attention of every member of the court, and has been the subject of careful and thorough examination in consultation. From the beginning, I have had no doubt that the judgment of conviction ought to be affirmed. An inspection of the opinion on the former appeal will disclose the fact that Judge Davidson and myself agreed that, except for the error of the court in declining to order an autopsy and an examination of the body of the deceased, which it was thought would
discover and disclose the true facts, that there has been no error committed by the trial court justifying a reversal. After the case was reversed on this ground it was retried, as I believe, in substantial, if not indeed, strict conformity to the decision of this court on the former appeal, and notwithstanding the earnest insistence of counsel to the contrary, my view has been unchanged that the record is practically without an error, and that no reason or excuse is found in it to set aside the verdict and judgment of the court below. In view of the importance, however, of the case, and out of deference and respect to the learned counsel who have, with great vigor and commendable zeal, prosecuted the appeal before this court, we feel that it should receive rather fuller treatment than any merit or difficulty in the case might ordinarily suggest.
There are in the case, two questions of substance presented in the record. The first is a question of fact, and that question is whether or not the issue of provoking the difficulty was raised by the evidence. If this should be answered in the negative, then we are all agreed that the case must and should be reversed. The majority of the court hold, as we all agreed on the former appeal, that the issue of provoking the difficulty is in the case. This was held on the former appeal. Judge Brooks, in his dissenting opinion in the case, went to the extent of holding that the facts and circumstances showed, without dissent or question, that he was guilty of provoking the difficulty, and there was virtually no dispute in the facts on this question. This, in substance, too, was the holding of the Court of Civil Appeals in his case, in that court growing out of the same facts. (117 S.W. Rep., 870). Without going into further detail on this matter, we hold that the issue of provoking the difficulty was clearly raised by the facts, and that the court did not err in submitting that question to the jury.
The next question of importance raised on the appeal, grows out of and is based on, the 13th paragraph of the court's charge. This paragraph is as follows: "You are instructed that if you find from the evidence in this case, beyond a reasonable doubt, that the defendant went to where the deceased was killed, and by his own wrongful act (if any there was), brought about the necessity of killing the deceased, Will Phillips, and that defendant provoked a difficulty with said Will Phillips, with the wrongful and wilful intention to take the life of deceased, or inflict upon him serious bodily injury, and you further find that the defendant knowingly and wilfully, and with the specific intention and with a view thereto, used toward deceased language, or did acts, or did both, for the purpose of causing deceased to attack defendant, that he might have a pretext to kill him or inflict upon deceased serious bodily injury, and you find that such language or conduct or acts, on the part of the defendant (if any such there was on the part of defendant) was reasonably calculated to bring on the difficulty, and cause the deceased to attack the defendant, and you further find
from the evidence, beyond a reasonable doubt, that the defendant, in pursuance of a wrongful, wilful and previously-formed design to provoke a difficulty with deceased for the purpose, and with the intention of killing him or inflicting upon him serious bodily injury, and you further find from the evidence, beyond a reasonable doubt, that intentionally, and with a view thereto, he shot with a pistol and thereby killed deceased, then you are instructed that the defendant's plea of self-defense will not avail him in this case, and if you so find from the evidence, beyond a reasonable doubt, the homicide would be manslaughter, under the law herein given you in this charge." Exception was taken to this paragraph of the court's charge, because (a) said charge is confusing and misleading; (b) because the jury were therein and thereby instructed that if the language used by defendant, if any, was reasonably calculated to bring on a difficulty, the defendant would forfeit his perfect right of self-defense, whether such language did or did not in fact bring on the difficulty; and (c) the appellant being on trial only for manslaughter, the language in said charge suggests to the jury that the defendant might be guilty of a higher grade of homicide, thereby causing the jury to inflict on appellant the maximum penalty for manslaughter; and (d) the jury are instructed, in effect, by said portion of said charge, that the appellant's plea of self-defense would not avail him if the jury believed that the intention of the appellant was to provoke a difficulty, and with a view thereto, he did shoot and kill the deceased, whether the appellant did or not, in fact, provoke the difficulty; and (e) the jury are in effect instructed by and in the last clause or paragraph of said charge, that if the appellant intentionally, and with a view thereto, shot and killed deceased with a pistol, his right of self-defense would be cut off. There is in the brief filed on behalf of appellant, and this was most strongly urged on argument, the further proposition that if the difficulty was provoked by appellant intentionally and deliberately, with the intention of taking the life of deceased, that his act in killing him, under the law, would be murder and not manslaughter; and the further suggestion is made that since he had been acquitted of both murder in the first and second degree, that this instruction was both erroneous and harmful. It is not certain that this last proposition is clearly raised in the motion for a new trial, but in the disposition we shall make of the case, we shall treat the case as if this point were sufficiently raised. This last proposition is the only one that we care to notice at length. We think, since appellant had been acquitted on the former trial, of both murder in the first and second degree, and since neither murder in the first or second degrees were mentioned to the jury, or defined, or any mention made of them, that the effect of this paragraph of the court's charge was merely to instruct them with reference to the circumstances under which he would be deprived of his perfect right of self-defense, and that the concluding clause of the paragraph of the charge
criticized, "and if you so find from the evidence, beyond a reasonable doubt, the homicide would be manslaughter under the law herein given you in this charge," might be rejected as surplusage, and as having no proper relation to the case, and without effect and without injury. But if this is not true, then clearly under the settled rule of law in this State, appellant is without just cause of complaint. This question came before this court very soon after I became a member of it, was made a matter of careful consideration and debate among us, and was definitely settled in the case of Cornelius v. State, 54 Tex. Crim. 173. In that case in an unanswerable argument, Judge Brooks laid down the rule clearly that there was no constitutional inhibition against using what is ordinarily denominated murder evidence to convict one of manslaughter. In the course of this decision, he uses this language: "Appellant in this case had, on a previous trial, been acquitted of the two degrees of murder, and upon this trial was convicted of manslaughter, and his insistence, as stated in the bill, is that the evidence showing nothing but murder in the first or second degree, that he is entitled to an acquittal, and cites us to the case of Parker v. State, 22 Texas Crim. App., 105, and Fuller v. State, 30 Texas Crim. App., 559. This question has also been before this court in the case of Turner v. State, 41 Tex.Crim. Rep.; 54 S.W. Rep., 579, and Pickett v. State, 43 Tex.Crim. Rep., 2 Texas Ct. Rep., 722. Also in other cases. In view of the confusion growing out of the rendition of said opinions, we deem it necessary to review the question presented in the light of the Constitution and laws of this State. Section 10, of the Bill of Rights, provides, that a defendant in all felony cases shall have an indictment preferred against him by a grand jury, which indictment must show the nature and cause of the accusation against him, and he is entitled to a copy thereof. Section 14, of the Bill of Rights, provides, that "no person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty, in a court of competent jurisdiction." Judge Hurt, in the case of Hirshfield v. State, 11 Texas Crim. App., 207, in passing upon the words "same offense," in the last cited article of the Constitution, uses this language: "Under the Constitution, no person shall be twice put in jeopardy for the same offense. What is meant by the term `same offense?' Does it mean the same offense eo nomine, or the same act or acts? Let us consult our Code. From it we learn that an offense is an act or omission forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed by this Code. `An act forbidden,' etc. From this we are not to infer that a single act in every case constitutes an offense. These, however, under this definition, are considered the act which is forbidden or punished by law. To these acts or omissions, the Code, in most of the cases, has given names. This, however, is conventional. To the act constituting larceny under the common law, the Code gives
the name of theft. But back to the proposition. The Constitution prohibits placing a citizen twice in jeopardy for the same offense. Is the name given to the act or acts which constitutes the offense to control, when we are seeking to determine whether it be the same offense or not, or must we not look to the act or acts, or the omissions prohibited and punished by the Code, in order to determine this question? We must, in determining whether they are the same offense or not, look to the act, acts or omissions; for these, and not the name by which they are called or denounced by the Code. We, therefore, conclude that a person shall not be twice put in jeopardy for the same act, acts or omission, which are forbidden by positive law, and to which is annexed, on conviction, any punishment prescribed in the Code.' See along the same line Adams v. State, 16 Texas Crim. App., 162. Then, under an indictment for murder, what is the act, acts or omission that appellant is being tried for? It is the homicide; it is the killing. If he is acquitted of the killing, that is, any and every form of unlawful homicide, by a verdict of the jury, there is a constitutional inhibition against a new trial for said act, omission or offense. In other words, the Constitution does not contemplate that appellant can invoke the same unless he has had a jury to say by a verdict in the court of competent jurisdiction, that he is not guilty of any personal violence to another, where he is indicted for murder. In other words, there is no constitutional inhibition against using what is ordinarily denominated murder evidence to convict one of manslaughter. If murder in the first and second degrees and manslaughter are different offenses, within the contemplation of the Constitution of this State, then under the first cited clause of the Constitution one could not be tried for murder and convicted for manslaughter, since the Constitution provides that he must have an indictment, which indictment must state the nature and cause of the accusation against him. If murder is a distinct offense within the contemplation of the Constitution, then one could not be legally indicted for murder and tried for manslaughter any more than he could be indicted for burglary and tried for arson. He must have an indictment charging the nature and cause of the accusation against him. The degrees of homicide are not distinct offenses, but are merely grades of one common offense, to wit: homicide. Before appellant could ask the charge above quoted, we would have to hold that one could be indicted for murder and tried for manslaughter. If appellant, as stated, has a jury to return a verdict of not guilty under an indictment for murder or manslaughter, then he can plead this in bar of his subsequent prosecution, for the grade of offense for which he is so indicted, but upon the trial of a case of murder, where the jury returns a manslaughter verdict, and it returns for a new trial by reason of reversal or otherwise, it is a denovo trial, inflicting upon appellant the punishment for the grade of the offense of homicide of which he had been previously acquitted, but there is neither constitutional nor statutory
inhibition against using the same evidence to prove the homicide upon the subsequent trial, and the conviction of appellant of any lower grade of homicide than that of which he had been previously acquitted. Article 762, of the Code of Criminal Procedure, reads as follows: `If a defendant, prosecuted for an offense which included within it lesser degrees, be convicted of an offense lower than that for which he is indicted, and a new trial be granted him, or the judgment be arrested for any cause other than the want of jurisdiction, the verdict upon the first trial shall be considered as an acquittal of the higher offense but he may, upon a second trial, be convicted of the same offense of which he was before convicted, or any other inferior thereto.' This is the only inhibition against a homicide trial in this State, where a new trial has been granted, the trial thereafter being in every instance denovo. Were it not for this statute, every trial for homicide under the Constitution of this State would be a denovo trial, regardless of the previous verdict of the jury, since, as we have seen, there is no constitutional inhibition against the same being a denovo trial for every grade of the offense, but the inhibition is simply statutory. It will be seen from reading the above cited article, that it only inhibits the penalty for the grade of offense for which he had been acquitted from being imposed in the second trial. If appellant, on the first trial, is acquitted of murder, how could he be convicted upon a subsequent trial for manslaughter, upon evidence that only suggests murder in the first or second degree, without using the evidence that was introduced upon the first trial, in the subsequent trial? We know, in practice, that the State insists upon getting the witnesses who are cognizant of the facts; having secured said witnesses, they introduce them on the trial in the first instance. It is left to the judgment of the jury in the first instance, to find appellant guilty of either murder in the first or second degree, or manslaughter. Then the identical same evidence is alone the proof that the State can adduce upon the second trial, and this statute recognizes that fact, and says that upon the second trial he can not be punished for the grade of offense of which he has been acquitted, but can be punished for the same or any lower grade of which he has been previously convicted. When a party is indicted for murder under that form of criminal pleading, he can be convicted of any grade of culpable homicide, thereunder. This conclusion is fortified by subdivision 9, of article 817, of the Code of Criminal Procedure, which reads as follows: `Where the verdict is contrary to the law and evidence. A verdict is not contrary to the law and evidence, within the meaning of this provision, where the defendant is found guilty of an offense of inferior grade to, but of the same nature as the, offense proved.' This statute is in line with the reasons above stated, and precludes any other conclusion than that the evidence in each instance can be used to convict of the lower grade of offense, regardless of the previous verdict. If a party can not get a new trial on the ground that he had been
convicted of a lesser grade of offense than he is guilty of, then it follows as night follows day, that you can use murder evidence to convict one of manslaughter. If murder is a distinct offense from manslaughter, and not merely a different grade of homicide, an acquittal of a grade of murder is an acquittal of manslaughter, then, under the Constitution of this State, you could not use murder evidence to convict for manslaughter, but they are not different offenses within the contemplation of the Constitution, but, as stated above, simply grades of one common offense, to wit: homicide. Furthermore, the decisions of this State have uniformly enforced the provision of the last cited article, and held that where one is being tried for an offense which contains grades, and he is acquitted of the higher grade, and convicted of the lesser one, that he can not come to this court and ask a reversal of the case on the ground that the evidence does not support the lesser grade. The authorities are so numerous on this question, we do not deem it necessary to cite them. If the grades of homicide are different offenses within the contemplation of the Constitution, why can not appellant complain that he is convicted of a lesser grade than he was charged with by evidence that only proves the higher grade? Certainly, if one was indicted for murder, and convicted of disturbing the peace, it would not be any answer to his motion for a new trial to say that he had been punished for a lesser offense than he was guilty of under the evidence. We would promptly reply to that character of motion that he had been convicted of an offense of which he had no indictment against him, and it is only one theory and one theory alone that you can indict a man for murder and convict him of aggravated assault, and that is on the legal and constitutional theory that an indictment for murder includes within its legal scope, all grades and character of unlawful violence to the person of another, and the different penalties attached to the different grades is not a reason for saying that there is an inhibition in the statutes or Constitution of this State against using evidence of the higher grade to convict of the lower. Burnett v. State, decided at the present term, and not yet reported. We accordingly hold that appellant's charge was not correct in law, and the court did not err in refusing to give same; and we further state that to whatever extent any decisions conflict with the views herein stated, they are hereby overruled."
The same general question came before the court also earlier in the case of Burnett v. State, 53 Tex.Crim. Rep., where the court used the following language: "There has been, on this question and kindred questions, a number of opinions rendered by this court, which, at least in their language, are not wholly consistent. We think the rule laid down in Pickett v. State,43 Tex. Crim. 1, 63 S.W. Rep., 325, is supported by the best considered decisions of this tribunal, and is so intrinsically sound and just as to be a sufficient support for our decisions in this case. The rule, as there stated
by Judge Davidson, is `Where defendant was acquitted of murder, and convicted of manslaughter, and on appeal the judgment was reversed, he was not entitled in the succeeding trial to an instruction to acquit him of the charge of manslaughter, if the evidence showed him to be guilty.' It appeared in that case as it appears in this, that there was evidence which would have authorized a conviction of either murder or manslaughter, and the appellant requested the court to instruct the jury that if they believed from the evidence that Pickett was guilty of murder in the second degree, they should acquit of manslaughter. The effect, as stated, of that instruction, and the contention there made, was that an acquittal of murder would operate as a bar to the conviction of manslaughter under the same indictment, although there was evidence supporting the latter offense. It is there stated, which is undeniably true, that it has been uniformly held that where a party had been acquitted of a higher degree, or grade, of offense that he can not again be convicted of that grade or degree, but that such acquittal does not operate as a bar in the prosecution of the inferior degree of such offense. On that very issue Judge Davidson says: "Appellant's contention is that the jury should offset manslaughter with the acquittal of murder, and therefore acquit if they find from the evidence that defendant is guilty of the higher offense; both of which are but grades of the same offense, and triable under the allegations of the indictment. We can not assent to this proposition. In Parker's case, 22 Texas Crim. App., 105, 3 S.W. Rep., 100, the trial court instructed the jury that they could use the testimony showing murder as a predicate for the conviction of manslaughter, although the party had been previously acquitted of murder. That is, appellant could not again be tried for murder when he had been once acquitted of that offense. That case rests upon that proposition. Other cases are numerous to the effect that, where there is evidence of a higher grade of offense, a conviction will not be disturbed for the inferior degree, though there was no testimony showing the inferior degree. These are expressly recognized and sanctioned in Parker's case. Fuller's case, 30 Texas Crim. App., 559, 17 S.W. Rep., 1108, is authority for holding that a conviction for murder in the second degree can be had where the evidence shows murder in the first degree. This seems to be predicated upon the idea that malice is a constituent element of both degrees of murder. The Fuller case was reaffirmed in Conde's case, 35 Tex. Crim. 98; 34 S.W. Rep., 286."
Our law makers seem early to have recognized that just such contention as that which confronts us now would often occur. In our Code of Criminal Procedure, paragraph 9, Article 817, we find the following provision: "Where the verdict is contrary to the law and evidence. A verdict is not contrary to the law and evidence within the meaning of this provision, where the defendant is found guilty of an offense of an inferior grade to, but of the same nature as, the offense proved."
In Campbell v. State, 10 Texas Crim. App., 560, Judge Winkler, passing on a similar question, said, "If there is any variance between the proof and the finding of the jury, it will be found on a careful examination that the evidence tends rather to establish a higher grade of offense than manslaughter, rather than a lower grade. If this be true, and if, by the administration of the law, one accused of crime, should be convicted of a lower grade of the crime included within the offense charged in the indictment than the proof warrants, certainly the defendant has no just ground to complain that he has been convicted of a grade of offense lower than the testimony warranted, and one for which a milder punishment is prescribed by law. In this case, however, on account of the fact that on a former trial, the defendant had been virtually acquitted of murder, he could not be put on trial for that grade of offense the second time, but this did not prohibit the State from calling upon him to answer for a lower grade of offense, included within the crime charged in the indictment, and for which he had not been previously tried; and to hold that a conviction for the lower grade of offense could not be sustained on the ground that the proof did not reduce the offense to the lower grade, would be to say that the State could not inflict any punishment for the offense, whatever, no matter how plain the evidence of his guilt. Such an application of the law would be a monstrous mockery not to be tolerated."
Murder in the first degree, murder in the second degree, and manslaughter, are not, in the strictly legal sense, different offenses, but merely different grades of the same offense. They are all species of unlawful homicide. The provision of our statute, by which in terms, it is said that the mere fact that one is convicted of a lesser grade of offense than that which the evidence shows, should be no ground for a new trial, was but a legislative declaration that because, in any case, the wrongdoer had not received the punishment to which he was entitled, should be no ground or cause why he should go unwhipped of punishment at all. At best the grades and degrees of an unlawful killing are more or less arbitrary, and the line between them sometimes difficult to be drawn. It was intended, as it should have been intended, to punish every man when he had unlawfully and intentionally taken the life of his fellowman, and to hold that because a former jury had acquitted the appellant in this case of murder in the first or murder in the second degree, that he is of right entitled on the second trial to go free, because another jury might conclude under a charge giving these necessarily technical definitions that the offense was murder in the second degree, is to absolutely nullify the substantial provision of our Code of Criminal Procedure, above quoted. In this case, the court defined manslaughter in terms that are substantially beyond criticism, and submitted to the jury the issue, or fact, as to whether, in the light of the evidence, and the instruction so given, the appellant was guilty of this offense. Having been acquitted of murder
in the first degree, and murder in the second degree, it was not the right of appellant to have these degrees defined or submitted, or one offset by the other. This we understand to be clearly the rule, and is so in accordance with justice, and so supported by the provisions of our Code above quoted, as to require us to follow it. For these reasons we believe the court did not err in refusing to give the special charge above referred to.
This, too, is in accordance with the safe and sane rule laid down in Hobbs v. State, 55 Tex.Crim. Rep., where we said: "It will thus be seen that under the charge of the court, by necessary implication, appellant was given the full benefit of the fact, reducing the killing to manslaughter, and the jury was charged, as a matter of law, that the adequate cause named in the statute did exist as completely as if the unequivocal admission had been made that his wife did communicate the facts of the insult to him, and that he (appellant) believed her statements to be true, and that they were in fact true." Again, in the recent case of Anthony v. The State, not yet reported, we held in passing on a charge in respect to manslaughter not entirely or technically accurate, that "since, however, appellant was found guilty of manslaughter, and such finding of necessity was a finding adverse to his plea of self-defense, such error becomes utterly immaterial." Now, then, in this case, when same came on for trial, the matter stood in this wise: The appellant had theretofore been acquitted of murder in both the first and second degrees. He could not, under the provisions of our law, be either tried or convicted of either of these degrees of unlawful homicide. The case, in the absence of any suggestion in the evidence to support any theory of negligent homicide, or any lesser degree of unlawful killing, was, on the part of the State, a case of manslaughter. On the part of appellant, it was contended that the killing, which was admitted, was in self-defense, and therefore under our law justifiable. The issue was therefore narrowed down to this: If the killing was unlawful, the law punished as for manslaughter. If it was in self-defense, the appellant was entitled to go free. The case was not embarrassed with all those niceties of distinction which sometimes vex more than they aid or enlighten. It was just such a contingency as this that our lawmakers, with rare wisdom and prescience, foresaw, and, having this contingency in mind, they made both wise and ample provision for it. They thought out and planned our Penal Code and Code of Criminal Procedure on the basic principle that all offenses for which a free man could be punished, must be defined in clear and intelligible language, and at the same time made the clearest provision, and gave assurance by ample guaranties that his right of self-defense should never be abridged. They knew, however, as we know, that these laws were to be enforced and interpreted by men. They must have known that they would not be enforced with automatic regularity or the shadowy lines of precise degrees always followed
with the precision of the map maker. It was to meet the precise condition exhibited in this case, that they enacted the clause of our Code above referred to, "a verdict is not contrary to the law and evidence, within the meaning of this provision, where the defendant is found guilty of an offense of inferior grade to, but of the same nature as the offense proved." If these views are correct, and the opinions of this court, in Cornelius v. State, and Burner v. State, and other cases referred to, are to stand, then the case must be affirmed. I am convinced that they are the law, and if they had never been written, I would today, following my judgment, after the most careful examination and patient consideration, so write the law. And to now unsettle these decisions, and to nullify and strike down a statute which was intended to, and does, settle the matter, would be worse than mere child's play, and from my point of view, would justly subject this court to the charge of trifling with the law, and of engaging in the phantom task of pursuing mere abstractions, while neglecting "the weightier matters of the law." Besides, it is clear that whether the charge is correct or not, it is favorable to the appellant, and places on the State a heavier burden than the law recognizes. His offense would have been manslaughter if he provoked the difficulty with the intent only to whip or injure deceased. He can not complain if the court, in his charge, required the jury to find that his intent in provoking the difficulty, was to kill Phillips, or do him some serious bodily injury, when the law only required that it should find that his intent was to whip or injure him.
Finally, as I have said, if these opinions are to be followed, we think it can not admit of doubt that they are conclusive of appellant's contention. To my mind they lay down a correct doctrine. I am authorized, by Judge Love, to say that he is personally inclined to the same view, but in any event, since it is now the settled ruling of the court, that he would not feel authorized to depart from the holding of these cases, unless he thought them wrong practically beyond dispute.
There are a number of other questions raised on the appeal, but they are not of sufficient importance in our opinion to require a discussion. After the most careful investigation that we have been able to give to the case, aided as we have been by the fullest and most splendid presentation of the issues by counsel, both for appellant and for the State, we believe that there was no error committed on the trial of the case of which appellant can reasonably complain, and it is therefore ordered that the judgment of conviction be, and the same is, hereby in all things affirmed.
Davidson, Presiding Judge, dissents.
Affirmed.