Redman v. State

149 S.W. 670, 67 Tex. Crim. 374, 1911 Tex. Crim. App. LEXIS 582

Opinions

PRENDERGAST, Judge.

—On July 2, 1907, the grand jury of Hill County, indicted appellant for the murder of J. C. Roberson on May 20, 1907. He was first tried in Hill County in 1907, convicted of murder in the first degree with the penalty of life imprisonment in the penitentiary. On appeal from that conviction this court reversed the case. It is reported in 52 Texas Crim. Rep., 591. The opinion on that appeal sufficiently states the case to make it unnecessary to make any further general statement thereof now.

After the case was reversed, the venue was properly changed from Hill to Ellis County, where the case was tried in November, 1910, resulting in the appellant’s conviction of murder in the second degree and his punishment fixed at ten years in the penitentiary, from which last trial and judgment this appeal is prosecuted.

The State has made a motion to strike out the statement of facts and bills of exception because they were not filed within the time allowed by law. The term of court in Ellis County was held, as allowed by law, for more than eight weeks. It adjourned for the term on December 3, 1910. The motion for new trial was made and overruled on the day the court adjourned. The court then granted thirty days after adjournment to prepare and file the statement of facts and bills of exception. On December 30, 1910, the court granted thirt)r days from January 3, .1911, and on the latter date again extended the time for ten days from February 1, 1911. The statement of facts and bills of exception were filed within this latter date. It seems to be the contention of the State that only the court in session could make these extensions of the time and cites the decision of the Supreme Court in Couturie v. Crespi, 131 S. W. Rep., 404. Later ■ decisions by the Supreme Court - show that the holding of that court is that, although the wording of the statute is not clear, the intention was to give the power to the judge of the court as well as the court in session, and that where such statements and bills were filed within the time thus allowed by the court in session or the judge thereof, such statements should be considered and not stricken out. As we understand,' there is no difference between this court and the Supreme Court on that subject, but it being a new statute, and all such matters could as well come before the Supreme Court as this court, we would, in this matter, follow the Supreme Court. It, however, is not necessary for us to discuss the question now, as the regular session of the Thirty-Second Legislature expressly, in effect, provided that statements of facts filed at any time within ninety days from the perfecting of the appeal, or the adjournment of the court, as the case may be, which would be applicable to felony cases in the District Court, should be considered filed in time. So that it is unnecessary for us to further construe the Act of 1909, as it is no longer in effect in this State. The motion of the State to strike out the statement of facts and bills of exception is therefore denied.

Appellant has preserved and presents questions raised by seven bills of exception and complains of some charges of the court upon which he asks this court to reverse the judgment of the lower court.

The first bill shows that after the trial began and before the evidence was offered, the appellant made a motion showing that on the trial of the case before the jury, the State would undertake to prove by Mrs. Eoberson, the wife of the deceased, her exclamations during the shooting and that she was screaming- and crying and begging the defendant not to shoot her husband and saying to him, “Please don’t shoot him any more,” and that her little girl was crying and begging the defendant not to shoot her papa any more, and that the defendant desired to object to the same before it was introduced. The objections to this testimony by the appellant was that such testimony was illegal and incompetent, prejudicial to the defendant and did not tend to illustrate any issue in the case nor shed light upon the guilt of the defendant. These objections were overruled, the testimony admitted and the court, in allowing the bill, explained “that the exclamations objected to occurred while the shooting was in progress and were a part of'the transactions.”

Mrs. J. C. Eoberson, the wife of the deceased, testified that just a few minutes prior to the shooting she saw the appellant and his cousin, Bert Caruth, pass her house, where she was preparing vegetables for her dinner, going in the direction where her husband was plowing in the field, about 340 feet from her doorsteps; that in a few 'minutes after they passed she heard a pistol fire. She then testified: “I got up and went out on the front gallery to see what it meant. I could see my husband running around the horses’ heads, and saw the smoke come out towards him. The horses’ heads were turned east. My husband ran around on the north side of the horses, and after I heard the first gun-fire I went out on the gallery and saw. my husband running around the horses’ heads and saw the smoke, and I ran into the yard, and as I was near the front gate heard the second shot that I heard, and as I was going up the road there were three more shots fired after that, and I saw Bedman holding a pistol in his hand, shooting at my husband. I run up the road hollering and screaming for him not to shoot my husband any more. When I stopped my husband had fallen. I never went to where he was. I stopped before I got there. He had fallen, but did not lay on the ground bu just a few seconds, and he got up and steadied himself on his elbow and then got up and started towards me. When I saw he was not killed I stopped and did not go up as far as he was in the field. He started towards me and defendant turned around and saw that he was getting up and he began to follow him, reloading his pistol as he followed him. He was holding the pistol in his left hand and putting in the cartridges with his right. Defendant was about thirty feet away when he saw my husband getting up, and was in about the center -of the public road, I think, when he turned around. My husband started angling southwest and was going towards the house, which was southwest from where he had fallen. There was a barbed wire fence around the field, hut there was a gap in the fence and my husband had fallen about twenty-five feet from the gap. The horses ran away immediately after he fell. When defendant turned around and saw my husband get up he turned and was walking towards my husband, and the defendant was going in a rapid walk. Defendant turned before my husband got to the gap, but did not start until he had reached the gap. He had seen my husband get up. I said, ‘Arthur, please do not shoot Johnnie any more/ I said this a half dozen times. I don’t know the number of times. My little girl and my baby child were with me at the time. My little girl says, ‘Please don’t shoot papa; please don’t shoot papa/ She was right behind me all the time. I guess I was about twenty-five feet from my husband when Bedman passed me going up to him. The defendant made no reply to what I said to him; he never said a word. It is about 115 feet from the gap on the east side to the gap on the west side of the road. My husband went through the west gap and defendant was about twenty-five or thirty feet behind him, and it’s about 140 feet from this gap to my house. There is a barn just on the inside of the west fence, and about eighteen or twenty feet from the gap on the west side, and the barn is a little northeast of the house. My husband went a few steps in the direction of the house and then turned, with Bedman following him, and said, ‘Go off and let us alone; go off and let us alone,’ and he then turned and went a little northwest into the barn, that is, in the seed shed, which was on the east side of the barn. Defendant was then going in at the gap. It is about twenty-five feet from the gap to the door of the feed shed. The seed shed was on the north side of the barn, and the barn was an old log house with the shed on the east side, and in this shed the door opened out east, and my husband went into this door and held the door to after him. There was nothing on the inside to fasten it with, and there was about six inches of space under the door and some slats to hold the seed in, and he tried to hold the door to underneath the slats; I saw his fingers on the outside there, holding the door to, and defendant walked up and shoved his fingers away and shot him there four times. I was just on the inside of the gap on the west fence at the time. Me and my little girl were both crying and begging him not to shoot any more. My little girl was saying, ‘Don’t shoot papa any more,’ and I would say, ‘Arthur, please don’t shoot Johnnie any more/ The defendant never said a word in reply to anything we said.”

We are of the opinion that the court correctly admitted this testimony as a part of the transaction. Jeffries v. State, 9 Texas Crim. App., 598; Long v. State, 48 Texas Crim. Rep., 175; Hancock v. State, 47 Texas Crim. Rep., 3.

By appellant’s second bill he claims that the court erred in permitting, on cross-examination of his witness Bilbry, the State to prove that the deceased was assistant superintendent of the Sunday-School at the James Schoolhouse, which was near the scene of the killing, and where the Sunday-School of the community was held. The objection to this testimony was that it was an effort to bolster up the character of the deceased when no attack had been made upon his character or reputation by the defendant, and that it was an indirect way to prove his character and standing, and an effort to add respectability to him and assault him before the jury and that it was illegal, incompetent and not binding on the appellant and prejudicial to him and calculated to arouse sympathy in favor of the deceased, irrelevant and immaterial. The court in allowing the bill explains it as follows: “The evidence showed that on a Sunday prior to. the homicide, and after defendant had heard of the statements deceased had made about Kittie Caruth, that defendant was at the schoolhouse where Sunday-School was being conducted; that he was not in the house, but was on the outside; that the State was permitted to prove that deceased was assistant superintendent of the Sunday-School and on this occasion was in the house performing his duties as such; that this evidence was offered and admitted as a circumstance showing that defendant could have seen and did see deceased through the open windows of the schoolhouse; and that this was a meeting with deceased after defendant had been informed of his statements about Kittie Caruth.”

The evidence by this witness on this point was that he saw the deceased on Sunday, May 12, at Sunday-School at this schoolhouse and that the deceased at that time first stated to him the condition of Kittie Caruth, which" was afterwards communicated to the appellant. On cross-examination he testified: “The Caruth girls attended Sunday-School and so did my son, as well, as Wes Holmes; the defendant also attended Sunday-School there. Jim Sherfey was superintendent of the Sunday-School and the deceased was assistant superintendent. It was just after Sunday-School broke up on the 12th that the deceased had the first conversation with me.” The testimony by others showed that the deceased was at this schoolhouse at Sunday-School the following Sunday and that the appellant was also there on the grounds, but not in the house. This bill in connection with the qualification of the judge and the facts surrounding what occurred shows that no error was committed in admitting this testimony.

Appellant’s third bill shows in effect that prior to the trial they informed the judge that Kittie Caruth had with her her baby, the paternity of which was charged upon appellant and that it was born in the summer of 1907, and that she would be used" as a witness by the State, and wanted the State’s attorneys and the witness instructed that she must not bring the child with her to testify on the stand. The court gave these instructions, and in giving her testimony when first introduced they were obeyed. Then it appears that ■two or three days later when she was called back to the stand for some purpose she took the haby with her. The judge in qualifying the bill says: “When the matter was called to the court’s attention at first, the court had counsel for the State tell the witness Kitty Caruth not to bring the baby in when she was called in as a witness, and she testified later, and the baby was not brought in with her; the next day, or perhaps two days later, the witness was recalled by the State, and when she came in had the baby with her, when counsel for the defendant called the court’s attention to it, the witness had almost reached the witness stand, and to have sent her back or in any way mentioned the baby would call the jury’s attention to it; for that reason the court permitted her to testify having the baby with her. ¡No - reference was made to the baby during her testimony, neither by her . or the attorneys, and during the argument the incident was not referred to.” There is no reversible error shown by this bill.

The next bill shows that the appellant placed on the stand Mrs. Emma James, who testified before the court in the absence of the jury substantially to this state of facts: That she married about six years before then an uncle of Kittie Caruth and that she and her husband lived about two miles and a half from Kittie’s father, with whom she lived; that she had known Kittie for about six years before the time she testified and visited her at her home a very few times; that on September 24, 1909, she received a letter from Kittie Caruth to this effect: “Dear Aunt Emma: Will write you a short letter. We'are all well, and hope you are the same. Have been sewing some for the baby; what have you been doing? Why don’t you come over? I believe that is about all I remember. And along about the last it said: Aunt Emma, come over; please come over soon as you can; I have something to tell you, and signed her name.” That on the evening of the same day she received the letter she saw Kittie Caruth at Kittie’s home. That when she went to the house Kittie’s father was not at the house, but was. in a potato patch; that he afterwards came to the house and sat on the front porch; that the witness later ■went back into the kitchen where Kittie was and told her that she had received her letter. Kittie smiled and says, “Did you?” and she replied, “Yes,” that she came over to see what she had to tell her. Kittie dropped her hands and said, “Aunt Emma, I can’t tell you this evening.” She then informed her aunt that her father was going to town the next day, and asked her to ask her father to let her go over and spend the day with her, which was done and Kittie went over and spent the next day with her. That Mrs. James was very busy the next day and until somewhat late in the evening had no opportunity to have Kittie tell her what it was she wanted to tell her, but upon seeing her father some distance off coming to the house she and Kittie went back into the kitchen, Kittie standing in the dining-room door with her head hung down and her aunt then requested her to tell her what she wanted to tell. Kittie replied, “Aunt Emma, I can’t,” with her face turned away. The witness asked why, and Kittie replied, “I can’t, Aunt Emma,” and began to cry. • “I never will swear any more lies,” and Kittie and the witness both began to cry, and they separated and nothing further was ever said between them on the subject.

The appellant offered this testimony as a circumstance to show that Kittie Caruth was under some restraining influence that was keeping her from telling the truth, and as a circumstance to show that she had previously stated the truth as to the paternity of the child and that at the time of the conversation with Mrs. James she desired to change her evidence.

Kittie Caruth had testified before the grand jury when the indictment was returned on July 2, 1907, that the appellant had never had any improper connection with her. On the said trial in the District Court of Hill County she testified that the appellant was the father of this child born during the summer of 1907. It was proved that she had also stated this at the time of its birth. She testified on this trial that appellant was the father of the child.

This evidence was entirely too remote and uncertain to be admissible for the purposes claimed by appellant or any other purpose in this cause, and the court did not err in excluding it.

The next bill shows that the State placed R. M. Vaughn, private counsel for the prosecution in this case, upon the witness stand, and proved by him that he was acquainted with Wes Holmes; that he had gone to Arkansas and that he had there seen and talked with Wes Holmes and that he had received two or three letters from Holmes since then, the last letter having been received in the last four months, and that the State had issued various processes for said witness, but had failed to get him and that Holmes had promised to come to Texas and testify upon this case and that the prosecution had arranged to pay his expenses (said Holmes had never returned to Texas). The appellant made no objection to this proof, but the State was then permitted to prove by said witness “that he had informed the defendant’s counsel as to the whereabouts of said witness Holmes by letter and in person and had told them the postoffice address in Arkansas of said witness Holmes.” Appellant objected to this testimony because he had been incarcerated in jail from the time of the killing until about eight weeks before this trial; that the State had not shown that any notice had been given to the defendant himself, either in jail or out of it by anybody as to the whereabouts of said Holmes and that the notification to his counsel did not bind him and as to him was hearsay and because it was illegal, incompetent, immaterial, irrelevant and prejudicial to the appellant.

It was admitted that when the witness Vaughn notified appellant’s counsel of the whereabouts of said Holmes the defendant was in jail and that there was no evidence to show, and the State did not offer to show, that the defendant himself was notified of the whereabouts of said Holmes or had any knowledge of the same or that Mr. Vaughn or anyone else had notified his" counsel of Holmes’ whereabouts, and that the State did not offer to show and did not show that the defendant had any knowledge as to the whereabouts of Holmes. The court allowed the bill with the explanation: “The defendant’s efforts during the trial was to impress upon the jury that Wes Holmes was the father of the child born to Kittie Caruth, and had fled the country on that account; the defendant had at a. previous term of court applied for a continuance on account of the absence of Wes Holmes; the court permitted the State to show where Wes Holmes was, and to account for his absence, and to show that defendant’s counsel knew where he was, because the State could not take his depositions or secure his presence, whereas the defendant could take his depositions; this was admitted to rebut the efforts being made all through tlie trial by counsel to by implication and indirection, cast suspicion on Holmes.” Notwithstanding, it is stated by appellant in this bill, and elsewhere in the record, that: “The leading and overshadowing issue in the case was as to the paternity of said child, the State contending through its testimony and argument to the jury, that defendant was the father of said child, and the defendant contending and swearing that he was not the father of it; but that the evidence of said Kittie Caruth on said point as to him being the father of it was false, and the defendant contending, through testimony introduced by him, and the argument of his counsel, to the jury, that the evidence showed and tended to show that Wes Holmes, or some other person, other than the defendant, was the father of it,” yet, under the circumstances, as shown by the record in this case, and the qualification of the judge in approving this bill, there was no error by the court in admitting the testimony objected< to as shown by this bill.

The next bill is as to the overruling of appellant’s motion for a new trial which presented a large number of grounds. It is unnecessary to note this further.

The seventh and last bill of exceptions complains of the refusal of the court to permit him, through the testimony of Dr. Menifee, to traverse and contradict the testimony of Mrs. Roberson, the widow of the deceased, in these particulars: She denied, on cross-examination by appellant, that in a conversation she had with Dr. Menifee on her gallery, the evening of the killing, that she stated to him that Kittie Caruth had come to her and had gotten medicine from her twice in the last three months for the purpose of bringing on her monthly period, and that a few days prior to the killing that said Kittie Caruth had come back to her the third time and asked her where Wes Holmes was, and that she told Kittie that Wes Holmes was gone and that Kittie then asked her if she did not think Wes Holmes had left her in a bad fix, and that she stated to Kittie that she was not going to furnish her any more medicine and was going to leave the matter to her grandfather. As shown by the bill it was stated by appellant’s attorneys at the time this testimony was offered, as follows: “The defendant, through his counsel, stated to the court that the defendant offered said testimony to support his theory in the case that Wes Holmes was the father of Kittie Caruth’s child, and to rebut her evidence as to the paternity of said child, and that the testimony was offered in connection with all the testimony in the case showing that John Boberson, deceased, had stated that his wife had told Wes Holmes to leave the country and that he had left, and had left no trace behind him, and that it was offered in connection with all testimony in the case that bears upon the relations between Wes Holmes and Kittie Caruth, their clandestine correspondence and the sudden flight of Wes Holmes before the killing, and with the evidence that showed that Mrs. Roberson’s brother, Ed Hickey, had brought Wes Holmes to Hillsboro, where he took the train away, and that it was offered in ’connection with the testimony of Ed Bilbry to the effect that shortly before the time that he left the country that he had stated in substance that he was too thick with the Caruth girl and that he was going to leave. That the evidence was offered as original evidence to prove the fact, that is, that after Wes Holmes had left the country, Kittie Caruth was inquiring of his cousin, Mrs. Boberson, as to his whereabouts, said testimony being offered by defendant as original evidence as well as to effect the credibility of Mrs. Boberson and. Kittie Caruth, and that said testimony was offered for all purposes.”

In appellant’s brief his argument and contention is that this evidence by Dr. Menifee was original testimony for all the purposes stated above, and does not contend by his argument and brief that it was admissible for the purpose of impeaching either Mrs. Boberson or Kittie Caruth. As it appears to us, so far as original testimony is concerned, it is clearly and purely hearsay. It could not have been introduced and was not admissible as original testimony bearing on any issue in the case. It seems that if any portion of it might have been admissible for the purpose of contradicting Mrs. Boberson, that this was ignored and only an illegal and improper use of it was sought. Its exclusion, therefore, under the circumstances could not have been such prejudicial error to the appellant as to authorize or permit this court to reverse because of its exclusion.

Appellant complains especially of the twenty-first paragraph of the’ court’s charge. This paragraph is as follows: “If you believe from the evidence beyond a reasonable doubt that before the homicide the defendant had had sexual intercourse with Kittie Caruth, and was the father of a child subsequently born to her, and you further believe from the evidence beyond a reasonable doubt that defendant killed deceased (if he did) not because, or partly because of insulting words uttered by deceased towards Blanche Caruth, but solely because what deceased may have said imputing a want of chastity to Kittie Caruth, then in such event the homicide would not be reduced to manslaughter, although, the defendant had been informed that deceased had stated that Kittie Caruth was in a family way and six months gone, and that defendant was the father of the unborn child, or even though deceased had repeated said statements or admitted that he had so stated in the presence of the defendant at the time of the killing.

“If, however, you believe the defendant had not had sexual intercourse with said Kittie Caruth, or if .you have a reasonable doubt as to whether he so had, and if you should further believe that prior to the homicide defendant had been informed that deceased had used insulting words imputing a want of chastity to Kittie Caruth or Blanche Caruth, both or either, and subsequent thereto he met the deceased and did not act on the information he then had, but that after such meeting or meetings (if any) he was informed of further insulting words that deceased had used towards said Kittie or Blanche Caruth, both or either, and the defendant acted upon such information and killed said J. C. Boberson as soon as he met him after having been informed of such additional insulting words (if any), either alone or in connection with the words of which he was first informed, were the cause which induced the defendant to kill deceased, and by reason thereof his mind was inflamed to such a degree as to render it incapable of cool reflection, then the same would be 'adequate cause/ and'if you believe that while defendant’s mind was in such condition (if it was), or if you have a reasonable doubt thereof, that the defendant shot and killed said J. C. Boberson, and you find defendant guilty, it could be of no higher grade of homicide than manslaughter; or, if you believe defendant, after having been informed that deceased had used insulting words towards Kittie or Blanche Caruth, both or either, sought the deceased in order to talk over the matter of such reports and try to adjust or settle them, and that deceased repeated the said words or admitted that he had used them, and that on account of such fresh provocation in defendant’s presence, either alone or in connection .with the former information which had reached him, the defendant’s mind became inflamed to such a degree as to render it incapable of cool reflection, then the same would be 'adequate cause/ and if you believe that while defendant’s mind was in such condition (if it was), or if you have a reasonable doubt thereof, that the defendant shot and killed said Boberson, and you find defendant guilty it could be of no higher grade of homicide than manslaughter.” His complaint of the first paragraph of the charge, just above quoted, is that the court had no right to decide, as a matter of law, that if the defendant had had sexual intercourse with Kittie Caruth and killed the deceased on account of insulting words concerning her, that the defendant could not be guilty of manslaughter. That this charge was upon the weight of the evidence and invaded the province of the jury on the issue of fact; that it was for the jury to determine whether appellant was guilty of manslaughter, even if they believed that he had had sexual intercourse with Kittie Caruth. This exact question was raised, discussed and decided against appellant in the other appeal of his case, 52 Texas Crim. Rep., 596, wherein this court on this question, said: “We hold that said instruction is the law. It is unnecessary to cite authorities to support the proposition that the character of a female may be proved as a circumstance to throw light upon whether the appellant believed the language slanderous. Certainly, it could not be seriously contended that if Kittie Caruth had given birth to a child, being an unmarried female, deceased had stated this fact to a party who informed appellant, her first cousin, and appellant knew the fact to be true, and he had sought out deceased and killed him, these facts alone would not reduce the killing below murder. We are not here discussing the question as to the lack of belief on the part of appellant of the truth of the statement, but to our mind it is absurd to say that one can claim that he killed a party for insult concerning a female relative, when said party knows the language used about said female is true. It is not slander or insult to a female relative in contemplation of the statute that authorizes the reduction of homicide to manslaughter, where the appellant knows the statement upon which he acts to be true; and if appellant was the father of the child or the author of the shame of Kittie Caruth in this case, he certainly knew it, and knowing it, he could not ask any court of justice in this State to give him a verdict of manslaughter upon said statement. ■ We accordingly hold the charge of the court correct. Furthermore, testimony going to show a lack of chastity by general reputation of a female, by a long line of authorities in this State, has been held to be proper evidence; since it goes to bring home to appellant the knowledge that said statement or supposed slander is not slanderous, but a true statement of what perhaps may be a horrible fact or condition. The theory for killing deceased for insult to a female relative is that appellant, at least, believes deceased is lying. If he knows he is telling the truth, it is absurd, as stated above, to claim any such defense.”

While the appellant in his testimony denied ever having had sexual intercourse with Kittie Caruth and denied that he was the father of her child born about three months after the killing, she, as positively, testified that he had repeated acts of intercourse with her and that he was the father of her child. By this paragraph of the court’s charge this question of fact was properly and specifically submitted ■ to the jury and they were aptly told that if the appellant had had sexual intercourse with Kittie Caruth and was the father of the child subsequently born to her, and that he killed the deceased solely because of what deceased had said about Kittie Caruth, imputing a want of chastity to her, then the homicide would not be reduced to manslaughter. In the next paragraph .the court submits that if he had not had intercourse with her and was not the father of her child, or they had a reasonable doubt thereof, in effect, it would reduce the homicide to manslaughter. This, taken in connection with the other charge on manslaughter, clearly and fully presented all the questions' of fact to the jury which it was necessary or proper to submit to them.

Among other things, it was clearly shown that on Sunday, May 12, 1907, before the killing occurred on Monday morning of the next week, the deceased, among other things, had stated to parties that Kittie Caruth was in family way—six months gone—and that appellant was the cause of it, and that this had been communicated to appellant and specifically stated to and discussed by him as early as Wednesday following Sunday, May 12; that after all this, on Saturday morning of that week he and appellant were working in adjoining fields and that they came together at the fence between them in working back and forth; that appellant then saw deceased and that he and deceased spoke to each other; that at that time appellant was not armed and had no pistol, but that he went to Hillsboro, six or eight miles distant, on Saturday evening and bought a pistol—a sixshooter.

That on Sunday, May 19, the deceased was at the schoolhouse in which the Sunday-School was conducted; that the appellant went to Sunday-School at that time and day, but did not go into the house. The evidence tends to show, and the jury were justified in believing, that the appellant on that occasion saw the deceased, but that he said or did nothing to him and no conversation occurred between them.

That again on Sunday, May 19, the deceased repeated to another what he had said the previous Sunday about the pregnancy of Kittie Caruth and the appellant’s connection therewith. That that Sunday night appellant, his cousin, Bert Caruth, the brother of Kittie, an uncle of theirs, and also their grandfather with others met at their uncle’s, Mr. James, to discuss and did discuss again fully all of the statements that the deceased had made concerning Kittie Caruth’s pregnancy and appellant’s connection with her, and also his statements about Blanche Caruth; that after this discussion of the matter appellant was told by Mr. Wallace, one of the consulting crowd, that the whole matter was to be handled and settled by the older heads. Appellant then stated that as he had been concerned with the matter, he thought it was his duty to go and settle his part of it himself, and to others he stated he would settle his part of it himself, and he also stated to Mr. Wallace, the party who informed him of the decision of the consultation, that he was going down to see Boberson the next morning and that if he (Boberson) told him to his face what he had been telling about Kittie Caruth that he would not stand it. Just after this, when the appellant, his cousin, Bert Caruth, and Edgar Bilbry were together, leaving this place of meeting, appellant told these two that he was going down to Boberson’s the next morning, and if he told him to his face what he had been telling to Wallace and others that he was going to kill him. (Appellant in his testimony denied in effect that he made these statements.) He also stated to Edgar Bilbry that he had a gun and was a good shot, and could plug a post every time.

On a former trial of the case the appellant, himself, among other things, testified that he told Hr. Wallace “that he (Roberson) had settled the matter on me and I thought it was my duty to go and see him myself about it.” (This refers to the conversation between the parties at Mr. James’ house the night before the killing, when they all had met and consulted about it.)

The immediate details of the shooting and killing itself is given above in this opinion in quoting the testimony of Mrs. Roberson, wife of deceased. On this trial she testified that while appellant' was doing the shooting “as to defendant’s appearance and as to whether or not he appeared to be cool and collected or excited, I do not know, I could only give my judgment. He seemed to be very cool.” On cross-examination she testified she thought this was the first time that she had testified appellant appeared to be cool. She also testified that she had frequently told the State’s attorneys about it, and had told them in her consultations with them and talks thereabouts “that defendant appeared to be perfectly cool and determined.”

The statute itself defining manslaughter requires two requisites to reduce voluntary homicide to manslaughter, to wit: “sudden passion” and that that passion “must arise from an adequate cause.” If either of these requisites are lacking, the offense can not he manslaughter, but must be murder in one or the other degrees. In McKinney v. State, 8 Texas Crim. App., 645, Presiding Judge White, for this court, said: “A killing upon such sudden passion as is mentioned may he murder in the second degree, even though the passion was anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection. To make such killing manslaughter, there must actually have existed not only such state or emotion of the mind, but the adequate cause which produced them must also exist. Penal Code, article 782. Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, may be sufficient to cause the emotions of the mind known as anger, rage, sudden resentment or terror, to the extent even of rendering it incapable of cool reflection, and yet a killing under such circumstances would not be manslaughter. Why? Because such insulting words or gestures, or such assault and battery, are not adequate causes (Penal Code, article 701), and manslaughter can not be predicated upon any voluntary homicide upon sudden passion not arising from am, adequate cause. (Penal Code, article 698.)” This decision has been repeatedly quoted and approved on this point. See Clore v. State, 26 Texas Crim. App., 624; Hill v. State, 11 Texas Crim. App., 456; Neyland v. State, 13 Texas Crim. App., 536; Childers v. State, 33 Texas Crim. Rep., 509; Blackwell v. State, 29 Texas Crim. App., 194, and Miller v. State, 31 Texas Crim. Rep., 639; Ex parte Jones, 31 Texas Crim. Rep., 446, and many other cases might be cited.

It is elementary that in considering the charge of the court the whole of it must he. considered and taken together. It will not do to pick out here and there some isolated words or short sentences, or even one paragraph by itself and consider that alone, for when these words, sentences or paragraphs are taken in connection with the whole charge, they would not be subject even to the criticisms made against them.

In this ease the appellant has done this with reference to the charge of the court. The court’s charge, as a whole, very fully and amply charges on murder in the first and second degrees and manslaughter and very aptly submits all questions of fact arising under each of these questions. The charge on manslaughter, we think, is particularly full, apt and appropriate, and in our opinion there is no reversible error pointed out in any way by the appellant which would authorize or justify a reversal of this case. Appellant did not ask any special charge on any subject.

There being no reversible error in the case, the judgment will be affirmed.

Affirmed.