DAVIDSON, Judge.
Appellant was convicted of. manslaughter, and given two years in the penitentiary; hence this appeal.
The following bill of exceptions appears in the record, to wit: “Be it remembered that on the trial of the above entitled cause, when the State was introducing its testimony, and was making its case in the first place,
and the witnesses W. T. Salmon and Tom Fuller were on the witness stand, and had testified to the facts of the shooting, wounding, and lulling of the deceased, that defendant asked said witnesses on cross-examination as to how a difficulty bétween Jim Shumate and deceased and one between Tom Fuller and Tom Shumate originated, and the circumstances of the origin of the difficulty between deceased and one Jim Shumate, and the other details of the said difficulties between deceased and Jim Shumate, and between Tom Fuller and Tom Shumate, to which testimony the State objected, on the ground that it was not cross-examination, and said objection was sustained by the court, and such testimony was at that time excluded. That after the State had closed its case, and when defendant was introducing his testimony, he introduced as a witness in this case Jim Shumate, who testified in detail to every circumstance of the trouble between himself and his two brothers, Tom and Leland, and the deceased, Hugh Fuller, and Sam Maxey and W. T. Salmon, including the details of the inception of the fight and of all the difficulty up to and including the circumstances of the shooting and killing. Afterwards, and in rebuttal, the State introduced Tom Fuller, W. T. Salmon, and Sam Maxey, who at that time testified in detail to all of the circumstances of the beginning of the altercation between deceased and Jim Shumate and others, and all of the circumstances of that difficulty from the beginning up to the circumstances of the shooting, but did not testify as to the circumstances of the shooting, and in said testimony contradicted the testimony of Jim Shumate in many important particulars. That, after the State had again closed its testimony, the defendant offered, as witnesses in his behalf, Tom Shumate and himself, the defendant (Leland Shumate), and proposed to show by them the circumstances of the origin of the altercation between Jim Shumate and deceased, and the beginning of the altercation and all of the circumstances of the same up to the fact of the shooting, to which testimony the State interposed the objection that the same was not in rebuttal, but was cumulative of Jim Shumate’s testimony, which objection was sustained by the court, and said witnesses were not permitted to testify as to said matters. That if the said Tom Shumate and the said Leland Shumate, the defendant, had been permitted to testify as to the origin of the said difficulty, and as to the circumstances of the same up to the time of the shooting, they would have testified to substantially the same facts testified to herein by Jim Shumate, at the instance of the defendant, as appears in the transcript, to which action of the court in excluding the evidence of Tom Shumate and of Leland Shumate the defendant excepts, and tenders this, his bill of exceptions number 19. This bill is approved with the explanation that the examination of the witnesses in chief was protracted by counsel to an extreme, tedious, and, as the court deemed, an unnecessary, length; and, when counsel for the defendant announced that the defendant closed his examination in chief, the court, anticipating that counsel for defendant were holding back some testi
mony which should be introduced in chief, gave fair warning that the examination would from that time on be confined strictly to rebuttal testimony. Notwithstanding this warning given by the court at the time, defendant never offered himself nor his brother Tom Shumate in chief. The witness Tom Shumate was allowed by the court to testify, and did testify, in behalf "of the defendant in rebuttal; and the court stated to counsel for defendant that the defendant could testify to any facts in rebuttal if he desired to do so, but his testimony would be confined strictly to rebuttal. [Signed] Don A. Bliss, Judge.”
■To condense: The State introduced witnesses, and proved the facts attending the shooting and death of the deceased, Fuller. The State did not go into the circumstances attending the origin of the difficulty between these parties or any of them, but confined the testimony to the immediate facts- attending the shooting and death of the deceased. Appellant proposed, in cross-examination of the State’s witnesses, to go into the circumstances attending the origin of the difficulty. He was refused this privilege. After a careful perusal of the statement of facts, we believe that the difficulty in which the deceased lost his life was one entire transaction. It is true that the testimony shows some fighting between deceased and his brother, on the one side, and the brothers of defendant on the other. There is some controversy between the State’s evidence and defendant’s testimony as to whether defendant was engaged in these prior difficulties; but all that occurred there was within a very brief space of time. There was hardly a cessation or lull in the fighting, from its beginning until the homicide was committed. It was all, in effect, one transaction, and it is impossible to understand the homicide itself without having before us all that occurred there between the parties immediately preceding it. The State undertook, however, under the sanction of the judge, to confine its testimony to the act of killing and the circumstances immediately surrounding it.
We believe, under the rules of evidence prescribed for criminal cases, that it was the duty of the prosecution to have entirely developed the State’s case before the defendant was called upon to put in any testimony; and it could not fairly' develop its case until the State had put in evidence all that occurred between the respective parties on the night of the homicide. If this course had been pursued, then the defendant would have had the opportunity of cross-examining the State’s witnesses upon the whole case before he was required to call the witnesses on his own behalf. He would have known exactly the shape of the State’s case upon the entire transaction before introducing his own witnesses; but the court, instead of requiring this course to be pursued, cut the State’s case in twain, and then would not even permit the defendant to cross-examine the State’s witnesses upon the circumstances preceding the homicide on that occasion. Appellant did not choose to make the State’s witnesses his own, but it appears, under the ruling of the court, was compelled to introduce his evidence as to -the origin of the difficulty.' He introduced one witness, and rested. The State was then permitted to in
troduce the same witnesses it had previously put upon the stand, and the defendant then proposed to introduce his brother Tom and himself in rebuttal of the State’s testimony. The court declined to permit him to do this, and in explanation states that he had warned defendant previously that he would confine the evidence strictly to rebuttal, as he apprehended that defendant was saving something back.
It occcurs to us that the error was committed by the court in the first instance in allowing the prosecution to examine its witnesses only on a part of one transaction, and then in refusing to permit the defendant to cross-examine these State witnesses upon the entire transaction, including the most important part thereof, to wit, the origin of the difficulty ; and, having committed this error against the defendant, it could not deprive him of the right to have the State develop its full case before he was required to close his testimony upon the issues made by the State; and, after the State had fully developed its case by its own witnesses, the defendant then had a right to introduce his witnesses, and to rebut the State’s case, and he could not be deprived of this right by the arbitrary ruling of the judge in the first instance, and the court should have admitted the testimony of the appellant himself and his brother Tom Shumate.
The theory of the State was, and the testimony on its behalf tended to show, that the difficulty occurred at a party at night; that on the one side was the defendant and his two brothers and one Payne, and on the other side were the two Fuller brothers and Maxey; and that in said difficulty the defendant and his crowd were the aggressors, or at least they entered into the conflict and fought willingly. Further it was contended that, however the difficulty may have originated, there was a lull in the difficulty, and the defendant interfered, and was stricken a blow by the deceased, and that he immediately retired from the conflict a short distance, procured a gun, and, when he returned, the deceased and his brother were engaged in a struggle, in which defendant’s brother’s (Tom’s) life was in danger, and that the defendant then shot and killed the deceased, and that at the least, such killing was manslaughter. On the part of the defendant it was insisted that the proof on his behalf showed that the deceased and his party were the aggressors and brought on the difficulty, and that he and his party fought purely in self-defense. It was further urged that, whoever might have been the aggressors in the origin of the difficulty, defendant was not present at the time, was not aware as to who was in the wrong, and that, when he came upon the scene, he found his brother Tom and deceased engaged in a difficulty. He interfered as a peacemaker, and deceased immediately struck him a blow over the head with a pistol. He immediately retreated a short distance, procured a gun, returned, and then found deceased and his brother Tom engaged'in a struggle, in which the deceased was using a pistol, and was in the act of taking his brother’s life; and under such circumstances he shot and killed deceased, and he claims that under such conditions he was justifiable in doing so.
On the subject of self-defense the court instructed the jury as follows:
“So, of course, if you should believe from the evidence that at the time the defendant killed the said H. M. Fuller, if he did kill him, it reasonably appeared to the defendant, looking at the circumstances from the defendant’s standpoint, at the time, that Jim Shumate was in present, imminent peril of losing his life or suffering serious bodily injury at the hands of the said H. M. Fuller, and that the defendant shot and killed the said H. M. Fuller for the sole purpose of saving the said Jim Shumate from said danger, and from no other motive; or if the evidence leaves in your minds a reasonable doubt that the defendant killed the said Fuller from any other motive than to save the said Jim Shumate from said danger, you will find him not guilty, unless you should believe from the evidence beyond ,a reasonable doubt that the said Jim Shumate, by his own wrongful act, brought on the necessity or apparent necessity of killing the said Fuller, and that defendant knew this or had good reason to believe this at the time he did the killing.
“In this connection, you are instructed, that if you believe from the evidence that defendant and his brothers Jim Shumate and Tom Shumate had a difficulty with H. M. Fuller and Tom Fuller, in the course of which the defendant received injuries, and that defendant left the immediate scene of the difficulty with the intent to kill H. M. Fuller, and, in pursuance of such intent, did shoot the said Fuller and thereby kill him, from a motive of revenge or of manslaughter, and this even though at the time he did the shooting his brother might have been in present, imminent peril; and if, under such circumstances, the defendant shot the -said H. M. Fuller, partly from a motive of revenge, and partly to save his brother, he would be guilty. In other words, for the homicide to have been justifiable, defendant’s sole motive in doing the killing, if he did do the shooting, must have been to save his brother. In such a case he would be guilty of murder in the first degree, if he formed the design to kill while his mind was sufficiently cool to enable him to contemplate the nature and probable consequences of his act. He would be guilty of murder in the second degree if he did the killing in a sudden transport •of passion produced by no 'adequate cause,’ as that expression has been explained to you. He would be guilty of manslaughter if he did the killing 'under the immediate influence of sudden passion’ produced by 'an adequate cause,’ as those expressions have been explained to you.
“In this connection you are further instructed, that if you believe from the evidence that Jim Shumate, by his own wrongful act, brought on the danger of his being killed or of suffering serious bodily injuries at the hands of H. M. Fuller (if there was such danger); and if you further believe from the evidence, beyond a reasonable doubt, that defendant knew this, or had good reason to believe this—and so knowing or having good reason to believe, ,shot and killed the said Fuller—he would be guilty; and this even though you should believe from the evidence that defendant’s sole motive in doing the shooting was to save Jim Shumate from said danger. But in such case, if defendant’s sole motive in doing
the shooting was to save Jim Shumate, he would he guilty of no higher grade of offense than manslaughter.
“In this connection you are further instructed, that if you should believe from the evidence that there was a fight between H. M. Fuller and Jim Shumate, and that in the course of such fight the said Fuller, while his mind was in such a condition that he could contemplate the nature and consequences of his act, formed the design to kill the said Shumate, not in defense of his own life, or to prevent his suffering serious bodily injury at the hands of the said Jim Shumate, and that the said Fuller proceeded to execute said design by attempting to kill the said Jim Shumate, then, under such circumstances, such an attempt would be an attempt to murder the said Jim Shumate; and if the defendant, under such circumstances, shot and killed the said Fuller with the sole motive of saving the said Jim Shumate, then he would not be guilty of any offense, no matter who was in the wrong at the beginning of the difficulty.
“Again, if the said H. M. Fuller made an unlawful assault and battery upon the said Jim Shumate, and if the acts of the said H. M. Fuller in such difficulty were of such a nature as to make the defendant reasonably believe that Jim Shumate’s life or limb would be endangered thereby, and if defendant so believed, and went away and procured a gun, and returned; and if upon his return it reasonably appeared to him that said Jim Shumate was in present, imminent danger of losing his life or of suffering serious bodily injury at the hands of the said H. H. Fuller, and the defendant shot and killed the said Fuller with the sole motive of saving the said Jim Shumate, then the defendant would be guilty of no offense, unless you should believe from -the evidence that, under the circumstances, the defendant would and should have resorted to other means to prevent the said Fuller from killing the said Jim Shumate, before resorting to the gun, and that a man of ordinary temper and prudence would have resorted to other means, and that such other means, if resorted to, would have prevented the said Fuller from killing the said Shumate. And the law, as set forth in this paragraph, would also apply, no matter whether H. M. Fuller or Jim Shumate were in the wrong in bringing on the difficulty, if the defendant, at the time of killing, was ignorant as to which one was the aggressor.”
The testimony for the appellant demanded an instruction upon two phases of the case, to wit, manslaughter arising from the blow given defendant by deceased with the pistol when he interfered in the difficulty between deceased and Jim Shumate, and, second, upon justifiable homicide, predicated upon the theory that, when defendant shot deceased, his brother’s life was then in imminent danger. The court, in his charge upon manslaughter, defined the essential elements constituting said offense as given by the statute. It then instructed the jury that, “if they believed defendant shot and killed deceased, not in necessary defense of Jim Shumate, when said Shumate was in imminent peril, real or apparent, of losing his life or suffering serious bodily injury at the hands of
said H. M. Fuller, but under the immediate influence of sudden passion produced by adequate cause, as this expression has been explained to you, shot and killed deceased, you will find him guilty of manslaughter,” etc.
Now, we believe, in order to present this subject properly before the jury, the court should have instructed them directly upon the phase of the testimony which presented the issue of manslaughter. He should have told the jury that if defendant came up while deceased, H. M. Fuller, and his brother, Jim Shumate, were fighting, and attempted to interfere and stop the difficulty, and deceased immediately struck him a severe blow over the head with a pistol, and this excited his passion so as to render him incapable of cool reflection, and under such circumstances he shot and killed deceased, it would be no more than manslaughter. We have quoted above the charge in part as given by the court on justifiable homicide. It will be noted that in one of said above-mentioned charges the court instructed the jury if they believed defendant shot and killed Fuller for the sole purpose of saving said Jim Shumate’s life, and from no other motive, to acquit; and the court further instructed the jury, on this same line, that, if they believed from the testimony that the defendant shot and killed deceased, partly from a motive of revenge and partly to save his brother, he would be guilty; that is, as we understand it, the jury were told that, if they believed that the defendant was partly actuated by malice and partly actuated by a motive of self-defense or defense of his brother, to attribute his act to the graver motive—that is, to his malice. Mr. Bishop says: Section 338: “As a general truth, criminal law does not take cognizance of all the motives of man, but only of the particular ones within its jurisdiction, just as it does not assume control over all the other acts; and it is immaterial what motives operated on the mind of the accused person, or what were inoperative, provided the law’s motives did or did not sway him.” Section 339: “If, moved by more intents than one, a man does what the law forbids, some intents being elements in the crime, and others not, the latter do not vitiate the former, which in their consequences are the same as though they stood alone.” Now, it would appear from this that there is no separation of motive; that, if the act was done unlawfully and of malice in this case, the law would not stop to inquire what other motive may have actuated the defendant; but if, on the other hand, the act was done in his own self-defense, or in defense of his brother’s life, the law would not stop to inquire if he also entertained a grudge against the deceased. But the court did not separate these motives, and the jury were, in effect, instructed that, although the defendant may have killed deceased in defense of his brother’s life, yet, if he was also actuated by malice or by passion arising from the blow towards the deceased, he would not be justifiable.
The phase of the case most urged on behalf of the defendant was that, during a momentary cessation in the difficulty between deceased and his brother Jim Shumate, defendant stepped up and endeavored to suppress the difficulty, when the deceased struck him a severe blow' over the head
with a pistol. He stepped aside a short distance (ten or fifteen steps), procured a gun, and immediately returned. When he returned, deceased, who had already, fired twice at defendant’s brother, was apparently in the act of shooting again, when defendant fired the fatal shot. No doubt, when the defendant retired to get the gun, he was smarting under a sense of injury from the blow received, and may have entertained malice or passion towards the deceased. When he returned with the gun he may have still entertained this malice or passion, and he may have intended (but this is speculating) to kill defendant on account of the blow he had received. But, when he returned, the conditions were all changed. He beheld the deceased, who had recently struck him over the head with a pistol, in the act of slaying his brother. Now, can it be said, because he may have intended to kill deceased for the blow inflicted upon him, that, although at the time he killed him deceased was then about to slay his brother, he killed him because of the blow he had previously received? We think not. Yet the charge of the court, in effect, instructed the jury that, if they believed defendant killed deceased in part to protect his brother’s life and in part because of revenge, to find him guilty. • If the court’s charge is correct, it was impossible for the jury to acquit appellant, for they could have never determined definitely which motive prompted the killing. To acquit, they were required to believe that defendant did not kill deceased from the passion aroused from the blow; they were required to believe that this motive or cause was not acting upon him when he fired the fatal shot, though they might have believed that he acted to save his brother’s life. As before stated, this is a refinement that has no place in the law. We believe, under the facts of this case, that the court should have submitted on the issue of self-defense, in a well defined charge presenting that phase of the case suggested by defendant’s testimony, to wit, if defendant, not knowing who was the aggessor in the beginning of the difficulty, found his brother and deceased engaged in a difficulty, and immediately interfered to separate them, and deceased then assaulted him, and he then retired a few steps, and procured a gun, and returned, and then found deceased in the act of taldng the life of his brother, and he killed him in order to save his brother’s life, to then acquit him. The testimony presented this phase of self-defense, and the defendant was entitled to the benefit of it, unhampered with other matter.
Again, the court required the jury to believe, before they could acquit, that defendant resorted to all other means, except shooting deceased, to save his brother’s life. As we understand the testimony, if defendant was justified in shooting deceased at all, it was because deceased was making an assault on his brother with a pistol, and was in the act of taking his life. Hnder this state of case, he was not required to resort to any other means except killing. The facts of this case do not bring it at all under article 677 of the Penal Code, which justifies a homicide when the person'slain is making an unlawful and violent attack of a character
less than to take life or do serious bodily injury, and the charge should not have been given predicated on said article.
We do not believe there is any merit in the other errors complained of, and we will therefore not discuss them. The exclamations and remarks of those engaged in the difficulty were admissible. They constituted a part of that transaction. They were made dum fervet opus. If the jury did not believe that they were made by those who acted with the appellant, then they would not use them as evidence against appellant. The circumstances and exclamations themselves indicate that they were made by the defendant or those who acted together with him. They were not relations of past’ events, but were exclamations showing the animus of the parties, and, we believe, admissible in evidence. Evidently, they were not made by either of the Fullers.
The judgment is reversed, and the cause remanded.
Reversed and remanded.
Hurt, Presiding Judge, absent.