BEBItY, J.
The appellant was convicted ■in the district court of Bexar county for the offense of murder, and~his punishment assessed at death. •
The facts show that the deceased was the wife of the appellant, and that the appellant killed both his wife, and Juan Aranda, a young man between 18 and 19 years of age. The killing occurred at the home of the appellant. It was the state’s theory that the appellant had become tired of his wife, and desired to live with another woman, and that he brought the deceased, Aranda, to his house, and killed him first, in order to predicate a defense thereon for killing his wife, and that he afterwards killed his wife. It was the appellant’s theory that the deceased and the boy, Aranda, were found by him in a compromising position, which indicated to his mind that they were committing adultery just before the slaying. On this theory the appellant testified as follows:
. “When I got home, I pulled the rope off of my horse, and I just left him stand there, and I walked in the house, and I seen a fellow lying in the bed with my wife. There were no lights on in the house, but I saw this man and my wife lying on the bed together, on the middle bed, between two cots.”
He further testified that he thought they were in the act of intercourse, adding:
“They were lying down. * * * I couldn’t tell whether he was on top or whether they was on the side. Their arms were around their bodies. When I opened the door, they jumped off the bed. He ran toward the back door.”
By. his first bill of exceptions the appellant complains at the court’s action in permitting the daughter of the appellant to testify against him in the case. The bill shows that, before the witness testified, the appellant was granted permission to interrogate her as to her competency under the law as a witness, and in answer to said interrogatories the .wit-nes testified as. follows:
“I am four years old, I cannot read and write. I have gone to school, but I didn’t learn to read or write. They-haven’t given us books yet. I do not know what an oath in court is. I do -not know what it is to be sworn in a case. I do not know what the penalty is if I testify falsely. I do not know what perjury is. I do not know what the penalty for perjury is. I do not know what the obligation of an oath is. I do know what they could do with me in court here for telling a falsehood; they can punish me. Nobody told me that. They can punish me by throwing me in the fire. The court here would throw me in the fire; the judge would take me and throw me in the fire.
“I know this gentleman right here, Mr. Bat Corrigan, the assistant distx’ict attorney. He [830] speaks Spanish. He has not had me in the district attorney’s office and talked to me in Spanish. He has talked to me; he talked' to me in Spanish to-day about this case.”
Upon the examination by the state as to her qualification, she testified as follows:
“I am going to tell the truth here. My father is Santos Jimenez. God would punish me if I didn’t tell the truth here, he would throw me in the fire.”
This constitutes all of the testimony of the witness tending to show her competency as a witness, and, after she had testified as to her qualification, as above set out, the bill of exceptions shows that she was permitted by the court to give damaging testimony against the appellant. The bill of exceptions is signed by the court without any qualification or explanation, and, unless the above testimony' shows that the witness was competent and qualified to testify, then same is not shown anywhere in the bill of exceptions. Section 2, art. 708, of our O. C. P. (1925), provides that all persons are competent to testify in criminal actions, except the following:
“Children or other persons who, after being examined by the Court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath.” ' -
It is well settled in .this state that the competency of a child as a witness is to be determined by an examination before the court, and the action of the trial court thereon will not be revised on appeal, in the absence of a showing that its discretion was abused. Section 1771, Branch’s P. C., for collation of authorities. It is also well settled, however, that children who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath, are incompetent witnesses. Williams v. State, 12 Tex. App. 137; Holst v. State, 3 S. W. 757, 23 Tex. App. 9, 59 Am. Rep. 770; Lawson v. State (Tex. Cr. App.) 50 S. W. 346; Mays v. State, 127 S. W. 546, 58 Tex. Cr. R. 653; Colter v. State, 39 S. W. 576, 37 Tex. Cr. R. 284; Murphy v. State, 35 S. W. 174, 36 Tex. Cr. R. 24; Brown v. State, 176 S. W. 51, 76 Tex. Cr. R. 513 ; Anderson v. State, 226 S. W. 414, 88 Tex. Cr. R. 307.
From the statute above quoted, it appears that before a child of tender age is permitted to give evidence in a criminal case two things must concur; First, it must appear that the child possesses sufficient intelligence to relate transactions with respect to which he or she is interrogated; and, second, it must appear from the examination by the court or under its direction that said child understands the obligation of an oath. If the child tails in either of these two respects, then its testimony should be excluded. If it be conceded that the child in this case appears to possess sufficient intellect to relate transactions with respect to which she was interrogated, we think that she unquestionably fell short in the other qualification; namely, that of being sufficiently advanced in intelligence to understand the obligation of an oath. The evidence quoted above shows that she had no conception of what an oath in court is, and she did not know what it was to be sworn in a case. It further shows that she had no conception of what the penalty is for testifying falsely; that she had no idea of what constitutes perjury or what the penalty therefor is. In fact, she categorically and affirmatively testified that she did not know what the obligation of an oath is, and this statement is nowhere qualified or in any manner weakened by any other statement she made in her examination before the court. It is true that she testified that she knew they could punish her for telling a falsehood, but her idea as to the punishment is not sanctioned by either law or common sense. The question for the determination of the court was, Did her testimony on the question of her competency show that she had “a realizing sense of the obligation of an oath?” We are satisfied that it was- insufficient for this purpose. On the contrary, as above indicated, we think it clearly and affirmatively shows that she did not have such understanding, and we think the court was in error in permitting this child to testifyunder the circumstances above detailed. An examination of the authorities last above cited, we think, will unquestionably disclose the correctness of this conclusion.
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BEBItY, J.
The appellant was convicted ■in the district court of Bexar county for the offense of murder, and~his punishment assessed at death. •
The facts show that the deceased was the wife of the appellant, and that the appellant killed both his wife, and Juan Aranda, a young man between 18 and 19 years of age. The killing occurred at the home of the appellant. It was the state’s theory that the appellant had become tired of his wife, and desired to live with another woman, and that he brought the deceased, Aranda, to his house, and killed him first, in order to predicate a defense thereon for killing his wife, and that he afterwards killed his wife. It was the appellant’s theory that the deceased and the boy, Aranda, were found by him in a compromising position, which indicated to his mind that they were committing adultery just before the slaying. On this theory the appellant testified as follows:
. “When I got home, I pulled the rope off of my horse, and I just left him stand there, and I walked in the house, and I seen a fellow lying in the bed with my wife. There were no lights on in the house, but I saw this man and my wife lying on the bed together, on the middle bed, between two cots.”
He further testified that he thought they were in the act of intercourse, adding:
“They were lying down. * * * I couldn’t tell whether he was on top or whether they was on the side. Their arms were around their bodies. When I opened the door, they jumped off the bed. He ran toward the back door.”
By. his first bill of exceptions the appellant complains at the court’s action in permitting the daughter of the appellant to testify against him in the case. The bill shows that, before the witness testified, the appellant was granted permission to interrogate her as to her competency under the law as a witness, and in answer to said interrogatories the .wit-nes testified as. follows:
“I am four years old, I cannot read and write. I have gone to school, but I didn’t learn to read or write. They-haven’t given us books yet. I do not know what an oath in court is. I do -not know what it is to be sworn in a case. I do not know what the penalty is if I testify falsely. I do not know what perjury is. I do not know what the penalty for perjury is. I do not know what the obligation of an oath is. I do know what they could do with me in court here for telling a falsehood; they can punish me. Nobody told me that. They can punish me by throwing me in the fire. The court here would throw me in the fire; the judge would take me and throw me in the fire.
“I know this gentleman right here, Mr. Bat Corrigan, the assistant distx’ict attorney. He [830] speaks Spanish. He has not had me in the district attorney’s office and talked to me in Spanish. He has talked to me; he talked' to me in Spanish to-day about this case.”
Upon the examination by the state as to her qualification, she testified as follows:
“I am going to tell the truth here. My father is Santos Jimenez. God would punish me if I didn’t tell the truth here, he would throw me in the fire.”
This constitutes all of the testimony of the witness tending to show her competency as a witness, and, after she had testified as to her qualification, as above set out, the bill of exceptions shows that she was permitted by the court to give damaging testimony against the appellant. The bill of exceptions is signed by the court without any qualification or explanation, and, unless the above testimony' shows that the witness was competent and qualified to testify, then same is not shown anywhere in the bill of exceptions. Section 2, art. 708, of our O. C. P. (1925), provides that all persons are competent to testify in criminal actions, except the following:
“Children or other persons who, after being examined by the Court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath.” ' -
It is well settled in .this state that the competency of a child as a witness is to be determined by an examination before the court, and the action of the trial court thereon will not be revised on appeal, in the absence of a showing that its discretion was abused. Section 1771, Branch’s P. C., for collation of authorities. It is also well settled, however, that children who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath, are incompetent witnesses. Williams v. State, 12 Tex. App. 137; Holst v. State, 3 S. W. 757, 23 Tex. App. 9, 59 Am. Rep. 770; Lawson v. State (Tex. Cr. App.) 50 S. W. 346; Mays v. State, 127 S. W. 546, 58 Tex. Cr. R. 653; Colter v. State, 39 S. W. 576, 37 Tex. Cr. R. 284; Murphy v. State, 35 S. W. 174, 36 Tex. Cr. R. 24; Brown v. State, 176 S. W. 51, 76 Tex. Cr. R. 513 ; Anderson v. State, 226 S. W. 414, 88 Tex. Cr. R. 307.
From the statute above quoted, it appears that before a child of tender age is permitted to give evidence in a criminal case two things must concur; First, it must appear that the child possesses sufficient intelligence to relate transactions with respect to which he or she is interrogated; and, second, it must appear from the examination by the court or under its direction that said child understands the obligation of an oath. If the child tails in either of these two respects, then its testimony should be excluded. If it be conceded that the child in this case appears to possess sufficient intellect to relate transactions with respect to which she was interrogated, we think that she unquestionably fell short in the other qualification; namely, that of being sufficiently advanced in intelligence to understand the obligation of an oath. The evidence quoted above shows that she had no conception of what an oath in court is, and she did not know what it was to be sworn in a case. It further shows that she had no conception of what the penalty is for testifying falsely; that she had no idea of what constitutes perjury or what the penalty therefor is. In fact, she categorically and affirmatively testified that she did not know what the obligation of an oath is, and this statement is nowhere qualified or in any manner weakened by any other statement she made in her examination before the court. It is true that she testified that she knew they could punish her for telling a falsehood, but her idea as to the punishment is not sanctioned by either law or common sense. The question for the determination of the court was, Did her testimony on the question of her competency show that she had “a realizing sense of the obligation of an oath?” We are satisfied that it was- insufficient for this purpose. On the contrary, as above indicated, we think it clearly and affirmatively shows that she did not have such understanding, and we think the court was in error in permitting this child to testifyunder the circumstances above detailed. An examination of the authorities last above cited, we think, will unquestionably disclose the correctness of this conclusion.
AppeUant also complains at the court’s action in refusing to charge on manslaughter in the case. This question has been fully discussed in an opinion by us this day delivered in the case of Billings v. State (No. 9586) 277 S. W. 687, and under the authority of that case we hold that the court was in error in refusing to charge the law of manslaughter in the instant case, and also that the court should not have charged on justifiable homicide under Pen. Gode 1925, art. 1220.
If the testimony detailed by the appellant as to what he saw transpiring between his wife and Aranda was sufficient to have commonly produced a degree of anger, rage, or resentment in a person of ordinary temper sufficient to render the mind incapable of cool reflection, then it was the duty of the court to submit this matter to the jury for its determination. If his testimony is true, wben he came to his home he saw these parties lying on the bed and embracing each other. It is also true that he further testified that he thought they were having intercourse. There was testimony from the state that the parties were not having intercourse. As was said in the Billings Case, supra, “to seriously [831] contend that this course of conduct would not arouse in a person of ordinary temper a degree of anger, rage, and resentment sufficient to render his mind incapable of cool reflection, would be in effect to destroy all of the impulses that [usually] actuate men in their everyday relations in life.” Nor in our opinion does the fact that appellant stated in his testimony that he thought they were in the act of intercourse serve to deny him the right to have the issue of manslaughter submitted, notwithstanding the fact that the court charge justifiable homicide under article 1220, Ten. Code 1925. The jury may not have believed all of the appellant’s testimony. They may have concluded that he saw his wife and Aranda in a compromising position which even to his mind indicated less than actual copulation. And, if the jury did so find, then they were left no alternative under the court’s charge but to convict the appellant of murder. This was not a correct presentation of the issues to the jury. It seems to our minds clear that manslaughter was raised by the testimony and should have been given upon request of the appellant by the court in his charge to the jury.
There are many other errors alleged by the appellant, but in view of the fact that they may not arise in the same form on another trial of the ease, a discussion of them is not deemed necessary.
For the errors above discussed, it is our opinion that the judgment should be reversed and the cause remanded.
PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.