This conviction is for murder in the second degree, the punishment being fixed at fifteen years in the penitentiary.
The State introduced Mrs. Ellington (wife of deceased) as a witness, and had her to display before the jury the blood stained clothing worn by her husband at the time of the homicide. Various objections were urged to the introduction of the bloody clothing. Under the authority of Cole v. State, 8 Texas Ct. Rep., 141, this evidence should not have been introduced. It served no legitimate purpose; it did not aid in any way in solving any issue in the case. There was no question in
regard to the location of the wounds, their effect and character. It is permissible to introduce the bloody clothing, when their introduction serves to illustrate some point or solve some question or throw light upon some matter connected with the proper solution of the case, but under no other circumstances. The introduction of this evidence did not serve to assist in the development of any matter connected with the trial, and the testimony was to inflame the minds of the jury.
The State called John Ellington (brother of deceased) as a witness, and he testified that, about the 29th of June, 1903, in a store in Kaufman, he had a conversation with appellant. Appellant asked the witness if he had heard that he (defendant) had charged a man for a drink of water. An affirmative reply was received. Defendant then stated, "I will kill any son of a bitch of Ellington there is, who says that I charged a man for a drink of water." During the conversation the name of deceased was not mentioned. Various objections are urged to this, among others, that the alleged threat or conditional threat was not directed against deceased; it had no connection with him; his name was not mentioned, and especially so as the killing occurred about other and entirely different matters; and that the testimony was prejudicial, etc. We are of opinion the objection should have been sustained. If this conversation tended to connect deceased with the threat or implied threat in any manner, it would have been admissible, but it did not, and so far as the bill shows, only tended to connect John Ellington with it. Nor is there any statement in the record disclosing that deceased ever had any connection with the matter or had made any remarks about the matter which was the subject of the conversation. Only John Ellington and wife were mentioned in the conversation referred to in the bill.
One of the issues raised by the evidence was manslaughter. This grew out of the fact that deceased used insulting language in the presence of and to defendant's wife in the absence of the defendant; and on the morning preceding the killing in the afternoon. The killing occurred at the first meeting after the insult had been given. The State then introduced several witnesses, who were permitted to testify, that they knew the reputation of the deceased, and that such reputation was that he was courteous and urbane in the presence of and towards ladies. Appellant did not put in issue the reputation of deceased. This was error. For case directly in point, see Moore v. State, 79 S.W. Rep., 565. The cases of Martin v. State, 6 Texas Ct. Rep., 267; and Everett v. State, 30 Texas Crim. App., 682, hold the contrary doctrine. The Martin case is based upon the Everett case, or rather refers to it as authority, and to Wharton's Crim. Ev., section 60. An inspection of the Martin case and the citation from Wharton will show that they were discussing a different question; to wit: the right of a defendant to place his character or reputation in evidence. Here the question was the right of the State to prove the good character of a witness to whom was imputed insulting conduct towards a lady. If
defendant had attacked the character of deceased in regard to his politeness or urbanity to ladies, then the State could have shown that he was polite and urbane to ladies. The Martin and Everett cases are overruled. The citation of authorities in the case, except Everett's case, are not in point. The Martin case cites no authority in point, except Everett v. State, supra. The Everett case was decided without citing any authorities, and none seem to have been relied on to support the position of the court in that case. By reason of the decision of the Moore case, supra, which was rendered subsequent to the Martin and Everett cases, there is a conflict in the decisions of this court on the question. After a careful review of this question and authorities, we are of opinion that it is safer and better to follow the well known rule, and to overrule the Martin and Everett cases.
The court charged the jury, in regard to the issue of manslaughter, as follows: "The jury are further instructed, if they believe from the evidence beyond a reasonable doubt that defendant, Joe Melton, did unlawfully and voluntarily shoot and kill Ben Ellington, with a pistol, and you further so believe that previous to such killing, defendant had been informed by his wife that Ben Ellington (deceased) had used insulting language to her, and that defendant killed deceased at his first meeting with him after he had been informed of such insulting words, under the immediate influence of the passion arising in his mind from such information," etc. Objection was urged because it shifted the burden of proof and subverted the reasonable doubt; that by the language employed the court required the jury to believe beyond a reasonable doubt that, in order to reduce to manslaughter, that the insulting language was used, whereas if there was a reasonable doubt as to the use of such insulting language and conduct, defendant should have the benefit of that doubt. In other words, the charge gave the benefit of the reasonable doubt to the State against the defendant, and thus shifted the burden of proof. This contention is correct. Rockhold v. State, 16 Texas Crim. App., 577; Pitts v. State, 29 Texas Crim. App., 374. A special instruction was requested by appellant covering and correcting this error, which was refused. This special requested instruction presents the law of the case as applicable to that phase of it. If there is any conflict between the principle laid down here and that announced in Spangler's case, 42 Texas Crim. App., 233 and Spears' case, 56 S.W. Rep., 347, those cases to the extent of that conflict are overruled.
Another objection to this charge is, that not only had the reasonable doubt been solved against defendant in the instruction, but required the jury to believe beyond a reasonable doubt that the wife had informed appellant of such insulting conduct. A special charge was requested covering this phase of the case, to the effect, that if defendant was informed by his wife of the insults offered her, and acted upon such information in good faith it would be immateral whether the information was in fact true. If the defendant believed it and in good faith
acted upon it, it would as to him constitute adequate cause, whether in fact the insults had been offered or not. Jones v. State, 33 Tex.Crim. Rep..
The court charged the jury that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. The adequate cause consisted of insulting language used by deceased to the wife of appellant in the morning prior to the homicide in the evening, appellant not being present. This was communicated to defendant when he returned home during the noon-hour. About 2:30 or 3 o'clock on the same evening the killing occurred. This seems to be the only predicate for manslaughter, if we understand this record correctly.
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This conviction is for murder in the second degree, the punishment being fixed at fifteen years in the penitentiary.
The State introduced Mrs. Ellington (wife of deceased) as a witness, and had her to display before the jury the blood stained clothing worn by her husband at the time of the homicide. Various objections were urged to the introduction of the bloody clothing. Under the authority of Cole v. State, 8 Texas Ct. Rep., 141, this evidence should not have been introduced. It served no legitimate purpose; it did not aid in any way in solving any issue in the case. There was no question in
regard to the location of the wounds, their effect and character. It is permissible to introduce the bloody clothing, when their introduction serves to illustrate some point or solve some question or throw light upon some matter connected with the proper solution of the case, but under no other circumstances. The introduction of this evidence did not serve to assist in the development of any matter connected with the trial, and the testimony was to inflame the minds of the jury.
The State called John Ellington (brother of deceased) as a witness, and he testified that, about the 29th of June, 1903, in a store in Kaufman, he had a conversation with appellant. Appellant asked the witness if he had heard that he (defendant) had charged a man for a drink of water. An affirmative reply was received. Defendant then stated, "I will kill any son of a bitch of Ellington there is, who says that I charged a man for a drink of water." During the conversation the name of deceased was not mentioned. Various objections are urged to this, among others, that the alleged threat or conditional threat was not directed against deceased; it had no connection with him; his name was not mentioned, and especially so as the killing occurred about other and entirely different matters; and that the testimony was prejudicial, etc. We are of opinion the objection should have been sustained. If this conversation tended to connect deceased with the threat or implied threat in any manner, it would have been admissible, but it did not, and so far as the bill shows, only tended to connect John Ellington with it. Nor is there any statement in the record disclosing that deceased ever had any connection with the matter or had made any remarks about the matter which was the subject of the conversation. Only John Ellington and wife were mentioned in the conversation referred to in the bill.
One of the issues raised by the evidence was manslaughter. This grew out of the fact that deceased used insulting language in the presence of and to defendant's wife in the absence of the defendant; and on the morning preceding the killing in the afternoon. The killing occurred at the first meeting after the insult had been given. The State then introduced several witnesses, who were permitted to testify, that they knew the reputation of the deceased, and that such reputation was that he was courteous and urbane in the presence of and towards ladies. Appellant did not put in issue the reputation of deceased. This was error. For case directly in point, see Moore v. State, 79 S.W. Rep., 565. The cases of Martin v. State, 6 Texas Ct. Rep., 267; and Everett v. State, 30 Texas Crim. App., 682, hold the contrary doctrine. The Martin case is based upon the Everett case, or rather refers to it as authority, and to Wharton's Crim. Ev., section 60. An inspection of the Martin case and the citation from Wharton will show that they were discussing a different question; to wit: the right of a defendant to place his character or reputation in evidence. Here the question was the right of the State to prove the good character of a witness to whom was imputed insulting conduct towards a lady. If
defendant had attacked the character of deceased in regard to his politeness or urbanity to ladies, then the State could have shown that he was polite and urbane to ladies. The Martin and Everett cases are overruled. The citation of authorities in the case, except Everett's case, are not in point. The Martin case cites no authority in point, except Everett v. State, supra. The Everett case was decided without citing any authorities, and none seem to have been relied on to support the position of the court in that case. By reason of the decision of the Moore case, supra, which was rendered subsequent to the Martin and Everett cases, there is a conflict in the decisions of this court on the question. After a careful review of this question and authorities, we are of opinion that it is safer and better to follow the well known rule, and to overrule the Martin and Everett cases.
The court charged the jury, in regard to the issue of manslaughter, as follows: "The jury are further instructed, if they believe from the evidence beyond a reasonable doubt that defendant, Joe Melton, did unlawfully and voluntarily shoot and kill Ben Ellington, with a pistol, and you further so believe that previous to such killing, defendant had been informed by his wife that Ben Ellington (deceased) had used insulting language to her, and that defendant killed deceased at his first meeting with him after he had been informed of such insulting words, under the immediate influence of the passion arising in his mind from such information," etc. Objection was urged because it shifted the burden of proof and subverted the reasonable doubt; that by the language employed the court required the jury to believe beyond a reasonable doubt that, in order to reduce to manslaughter, that the insulting language was used, whereas if there was a reasonable doubt as to the use of such insulting language and conduct, defendant should have the benefit of that doubt. In other words, the charge gave the benefit of the reasonable doubt to the State against the defendant, and thus shifted the burden of proof. This contention is correct. Rockhold v. State, 16 Texas Crim. App., 577; Pitts v. State, 29 Texas Crim. App., 374. A special instruction was requested by appellant covering and correcting this error, which was refused. This special requested instruction presents the law of the case as applicable to that phase of it. If there is any conflict between the principle laid down here and that announced in Spangler's case, 42 Texas Crim. App., 233 and Spears' case, 56 S.W. Rep., 347, those cases to the extent of that conflict are overruled.
Another objection to this charge is, that not only had the reasonable doubt been solved against defendant in the instruction, but required the jury to believe beyond a reasonable doubt that the wife had informed appellant of such insulting conduct. A special charge was requested covering this phase of the case, to the effect, that if defendant was informed by his wife of the insults offered her, and acted upon such information in good faith it would be immateral whether the information was in fact true. If the defendant believed it and in good faith
acted upon it, it would as to him constitute adequate cause, whether in fact the insults had been offered or not. Jones v. State, 33 Tex.Crim. Rep..
The court charged the jury that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. The adequate cause consisted of insulting language used by deceased to the wife of appellant in the morning prior to the homicide in the evening, appellant not being present. This was communicated to defendant when he returned home during the noon-hour. About 2:30 or 3 o'clock on the same evening the killing occurred. This seems to be the only predicate for manslaughter, if we understand this record correctly. This being true, the charge of the court should have submitted the isue of manslaughter upon the adequate cause constituted by the insulting conduct and language by deceased towards appellant's wife. Under this phase of the law, the provocation which forms the predicate for the passion need not arise at the time of the homicide. The facts here show that defendant was not present when the insulting language was used, but it was communicated to him some hours after its occurrence, and the killing occurred upon the first meeting. Orman v. State, 22 Texas Crim. App., 604.
There is another phase of the law perhaps necessary to notice, and which should be given upon another trial. Appellant testified that after his wife communicated the insulting conduct and language of the deceased to him, he sought deceased for an explanation and retraction; and with the further view, if the retraction was had and the explanation made, that the friendly relations would be resumed and continued between the parties. It is contended by appellant that the jury should have been informed in appropriate language that appellant had the right to seek deceased for a peaceable solution of the difference, and ask a retraction of the insulting conduct; and that in doing so, he had the right to arm himself to resist any anticipated attack from the deceased, relying upon the rule laid down in Shannon's case, 35 Tex.Crim. Rep..
Some of the conduct of the county attorney during the trial is criticised. We deem it unnecessary to discuss those matters because they hardly occur upon another trial.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.