LATTIMORE, Judge.
— Appellant was convicted in the District Court of Kaufman County of murder, and his punishment fixed at ninety-nine years in the penitentiary.
That the omission of the seal on the writ issued by the clerk of the trial court commanding service by the sheriff of a copy of the indictment, is not a material error, was recently decided in substance by this court in Adams v. State, No. 7349, opinion handed down March 14, 1923, in which case the Ollora case, 60 Texas Crim. Rep., 217, was reviewed and to some extent overruled and the Luster ease, 63 Texas Crim. Rep. 541, was approved.
The killing took place at that part of the depot in the town of Terrell, Texas, used as an office by the express company. Deceased was in said office and walked out and to the waiting room to get some water. Appellant was approaching the depot armed with a shotgun and saw deceased as the latter came back from the waiting room into the express office. He had some buck shot shells in his pocket and upon seeing deceased put two of said shells into his gun. According to his own testimony appellant next saw deceased moving along inside the room and testified that deceased turned his head and caught sight of him, appellant, and made a movement with his left shoulder, that side being toward appellant, and appellant thought that he was going to draw something with his right hand and immediately fired. Deceased fell and appellant walked nearer and fired again.' Sixteen buck shot entered the body of deceased at one place and nine at another. Parties inside the express office testified that the first shot entered the back of deceased, who fell, and that after he fell, appellant came up near to the open door through which he had first fired, and fired the second shot into the body of deceased while lying on the floor. Appellant further testified that he shot deceased because he thought his own life was in danger, and that deceased had insulted and outraged his wife. Appellant’s wife testified that she and appellant came to Terrell in February 1922, and that some time after their arrival as she was walking along the street she was accosted by deceased and recognized him as a boy who had- formery played with her own sons; she got in the ear with him and he carried her to the store to which she was going. She also testified that on another occasion she rode in the
car with, him fifteen or twenty minutes. She further testified that he put his hand upon her leg on one occasion while in the ear with her, and that he proposed to come to her house to' see her on occasions when her husband was away, and stated that twice he came to her house but that the door was fastened and he was not permitted to enter on either occasion. She testified to no acts of criminal intimacy, and denied having told her husband of any such acts. Appellant swore that his wife told him of insults to her by deceased, and further said that she told him that deceased came into her house on one occasion and by brute force had sexual intercourse with her. He also testified that on June 15, 1922, she told him that deceased had been out to her house that day but did not get in. The 1.5th of June was on Thursday; the killing took place the Monday following. It was in testimony both by appellant and his wife that on Saturday preceding the killing, appellant suggested to her that they walk on Asylum Avenue in the city of Terrell. Deceased was an employe at the North Texas Hospital for the Insane in said city and drove a car having the initials of the institution upon it. He frequently drove on Asylum Avenue. Appellant said that his object in taking the walk above mentioned was to see what deceased would do. He walked on one side of the street and his wife on the other. While thus engaged deceased came meeting them in said car, and, according to their story, when he saw appellant’s wife he went on up, turned the car and came back and then stopped it and began talking to the woman. Appellant admitted that deceased on this occasion was within fifty feet of him. Appellant was armed with a pistol, a 38-45. His wife testified that she told deceased on this occasion that he was being watched and that he was liable to be killed and begged him to go on off, which he did. Reverting for a moment to what occurred at the express office on the day of the killing, we note that a State witness testified that after deceased fell to the floor and appellant advanced to the open door and shot him the second time, that appellant then unbreeehed his gun, blew the smoke out of the barrels, reloaded both barrels and walked off and that nothing was said at the time.
■ Appellant excepted to the submission of the law of murder on the ground that there being no other testimony as to motive save that which showed that he had killed deceased because of insulting words and conduct toward his wife, the case was one only of manslaughter. We do not understand the law as contended for by appellant’s counsel. The Doss case, 67 S. W. Rep. 321, which is cited by appellant, is on facts stronger for the accused than those here present. It is not enough that there exists facts which could be adequate cause to produce that passion which reduces a killing to manslaughter, but it must appear to the satisfaction of the jury that such condition of passion was actuating the mind of the accused at the time,
and caused him to commit the homicide. This is statutory, Art. 1137, P. C., as well as judicially determined. Wofforth v. State, 31 Texas Crim. Rep. 387; Evans v. State, 31 Texas Crim. Rep. 18; Bowlin v. St. No. 6418, opinion 11/1/22. The existence of such passion as well as of the adequate cause, are questions of fact for the jury.
Testimony of the State showed the reputation of Mrs. Stovall for virtue and chastity to be very bad. A witness to this fact, upon cross-examination as to whether said reputation arose from bad conduct between said wife and deceased, testified that it did not,— that it arose from the conduct of appellant and his wife before they married. In Rodman’s case, 52 Texas Crim. Rep. 591, and Teague v. State, 67 Texas Crim. Rep., 41, both approved in Bibb v. State, 86 Texas Crim. Rep., 112, 215 S. W. Rep., 316, it was held that such reputation is entitled to weight in determining the existence of passion; i. e., that one who knows of his female relative’s prior infidelity may or may not be so aroused by the insult relied on in the instant case as to reduce the killing to manslaughter. The State also predicated its claim that the killing could not be attributed to such passion, and, therefore, could not be reduced to manslaughter, —on the fact that after being informed of the insults to his wife appellant met deceased on Saturday before the killing on Monday, and not having then slain deceased immediately or so soon after being informed of the insults as the party killing may meet the party slain, ■ — the homicide would not be manslaughter. Granting basis for either contention of the State, the court was justified in submitting the law of murder, and the decision of the grade of homicide was for the jury under appropriate instructions and upon their conclusion as to the facts.
Exception was reserved to the charge for failing to instruct the jury as under subdivision 3, Article 1132 P. C., that adultery of deceased with appellant’s wife would be adequate cause provided the killing took place as soon as the fact of the illicit connection be discovered. We do not think the exception well founded. As stated above, Mrs.
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LATTIMORE, Judge.
— Appellant was convicted in the District Court of Kaufman County of murder, and his punishment fixed at ninety-nine years in the penitentiary.
That the omission of the seal on the writ issued by the clerk of the trial court commanding service by the sheriff of a copy of the indictment, is not a material error, was recently decided in substance by this court in Adams v. State, No. 7349, opinion handed down March 14, 1923, in which case the Ollora case, 60 Texas Crim. Rep., 217, was reviewed and to some extent overruled and the Luster ease, 63 Texas Crim. Rep. 541, was approved.
The killing took place at that part of the depot in the town of Terrell, Texas, used as an office by the express company. Deceased was in said office and walked out and to the waiting room to get some water. Appellant was approaching the depot armed with a shotgun and saw deceased as the latter came back from the waiting room into the express office. He had some buck shot shells in his pocket and upon seeing deceased put two of said shells into his gun. According to his own testimony appellant next saw deceased moving along inside the room and testified that deceased turned his head and caught sight of him, appellant, and made a movement with his left shoulder, that side being toward appellant, and appellant thought that he was going to draw something with his right hand and immediately fired. Deceased fell and appellant walked nearer and fired again.' Sixteen buck shot entered the body of deceased at one place and nine at another. Parties inside the express office testified that the first shot entered the back of deceased, who fell, and that after he fell, appellant came up near to the open door through which he had first fired, and fired the second shot into the body of deceased while lying on the floor. Appellant further testified that he shot deceased because he thought his own life was in danger, and that deceased had insulted and outraged his wife. Appellant’s wife testified that she and appellant came to Terrell in February 1922, and that some time after their arrival as she was walking along the street she was accosted by deceased and recognized him as a boy who had- formery played with her own sons; she got in the ear with him and he carried her to the store to which she was going. She also testified that on another occasion she rode in the
car with, him fifteen or twenty minutes. She further testified that he put his hand upon her leg on one occasion while in the ear with her, and that he proposed to come to her house to' see her on occasions when her husband was away, and stated that twice he came to her house but that the door was fastened and he was not permitted to enter on either occasion. She testified to no acts of criminal intimacy, and denied having told her husband of any such acts. Appellant swore that his wife told him of insults to her by deceased, and further said that she told him that deceased came into her house on one occasion and by brute force had sexual intercourse with her. He also testified that on June 15, 1922, she told him that deceased had been out to her house that day but did not get in. The 1.5th of June was on Thursday; the killing took place the Monday following. It was in testimony both by appellant and his wife that on Saturday preceding the killing, appellant suggested to her that they walk on Asylum Avenue in the city of Terrell. Deceased was an employe at the North Texas Hospital for the Insane in said city and drove a car having the initials of the institution upon it. He frequently drove on Asylum Avenue. Appellant said that his object in taking the walk above mentioned was to see what deceased would do. He walked on one side of the street and his wife on the other. While thus engaged deceased came meeting them in said car, and, according to their story, when he saw appellant’s wife he went on up, turned the car and came back and then stopped it and began talking to the woman. Appellant admitted that deceased on this occasion was within fifty feet of him. Appellant was armed with a pistol, a 38-45. His wife testified that she told deceased on this occasion that he was being watched and that he was liable to be killed and begged him to go on off, which he did. Reverting for a moment to what occurred at the express office on the day of the killing, we note that a State witness testified that after deceased fell to the floor and appellant advanced to the open door and shot him the second time, that appellant then unbreeehed his gun, blew the smoke out of the barrels, reloaded both barrels and walked off and that nothing was said at the time.
■ Appellant excepted to the submission of the law of murder on the ground that there being no other testimony as to motive save that which showed that he had killed deceased because of insulting words and conduct toward his wife, the case was one only of manslaughter. We do not understand the law as contended for by appellant’s counsel. The Doss case, 67 S. W. Rep. 321, which is cited by appellant, is on facts stronger for the accused than those here present. It is not enough that there exists facts which could be adequate cause to produce that passion which reduces a killing to manslaughter, but it must appear to the satisfaction of the jury that such condition of passion was actuating the mind of the accused at the time,
and caused him to commit the homicide. This is statutory, Art. 1137, P. C., as well as judicially determined. Wofforth v. State, 31 Texas Crim. Rep. 387; Evans v. State, 31 Texas Crim. Rep. 18; Bowlin v. St. No. 6418, opinion 11/1/22. The existence of such passion as well as of the adequate cause, are questions of fact for the jury.
Testimony of the State showed the reputation of Mrs. Stovall for virtue and chastity to be very bad. A witness to this fact, upon cross-examination as to whether said reputation arose from bad conduct between said wife and deceased, testified that it did not,— that it arose from the conduct of appellant and his wife before they married. In Rodman’s case, 52 Texas Crim. Rep. 591, and Teague v. State, 67 Texas Crim. Rep., 41, both approved in Bibb v. State, 86 Texas Crim. Rep., 112, 215 S. W. Rep., 316, it was held that such reputation is entitled to weight in determining the existence of passion; i. e., that one who knows of his female relative’s prior infidelity may or may not be so aroused by the insult relied on in the instant case as to reduce the killing to manslaughter. The State also predicated its claim that the killing could not be attributed to such passion, and, therefore, could not be reduced to manslaughter, —on the fact that after being informed of the insults to his wife appellant met deceased on Saturday before the killing on Monday, and not having then slain deceased immediately or so soon after being informed of the insults as the party killing may meet the party slain, ■ — the homicide would not be manslaughter. Granting basis for either contention of the State, the court was justified in submitting the law of murder, and the decision of the grade of homicide was for the jury under appropriate instructions and upon their conclusion as to the facts.
Exception was reserved to the charge for failing to instruct the jury as under subdivision 3, Article 1132 P. C., that adultery of deceased with appellant’s wife would be adequate cause provided the killing took place as soon as the fact of the illicit connection be discovered. We do not think the exception well founded. As stated above, Mrs. Stovall did not testify to any illicit intercourse with deceased, and appellant’s testimony was that she told him that deceased by brute force had knowledge of her person. This is not adultery but rape, if anything, and the learned trial court told the jury plainly that if they believed that deceased had assaulted appellant’s wife and made insulting remarks to her, and this information was given appellant and it produced in his mind such a degree of rage, anger, terror or resentment as to render it incapable of cool reflection, this in law would be an adequate cause. We do not think the criticism of that part of the charge sound for that it used the conjunction “and” instead of “or.” Appellant discovered
no adultery, heard of no insulting conduct, except as same was disclosed by his wife. Julia Davis only swore that she told appellant that his wife was afraid of deceased, and we find nothing in the testimony of witnesses Seale and Dewberry sustaining the proposition of an assault. If then appellant’s wife swore that she told him of insulting conduct and words, and he adds to that that she also told him of deceased’s assault upon her, we fail to see how injury could result from the submission of both as adequate causes conjunctively. Especially is this true in view of the fact that in paragraph thirteen of the charge the court below told the jury that insulting words or conduct would be adequate cause; and in paragraph fifteen informed them that if appellant was told of such insulting words or conduct and believed this to be true, it would be adequate cause whether in fact same was true or not.
Appellant’s bills of exception Nos. 4, 5 and 6 are so clearly multifarious and present so many different objections, as that this court can not consider same.
Copiplaint is made of the action of the court in admitting testimony of two witness to the bad reputation of the wife of appellant for virtue and chastity, which testimony was excluded by the court upon -it being developed that said reputation as far as said witnesses knew was based upon her acts and conduct prior to her marriage to appellant. We do not think the bill of exceptions shows any error. On direct examination the witnesses testified, and it being developed on cross-examination that their conclusion of her bad reputation referred to a time when knowledge of such reputation might not be chargeable to appellant, the court’s prompt action in excluding the testimony was seemingly all that could be done.
Bill of exceptions No. 8 complains of the testimony of a witness on certain facts, but as qualified the bill presents no error. It is made to appear from the qualification of the court- that all the testimony complained of was brought out by counsel for appellant upon cross-examination. The same thing is true of the complaint evidenced by bill of exceptions No. 9.
We feel constrained to compliment counsel appointed by the court below for their diligence and faithfulness in their prosecution of the defense. There are many things in the record which might be mentioned in this opinion greatly reflective upon the course of conduct of appellant prior to his marriage to his wife. A discussion of such facts is not necessary. The killing appears to have been done by one who was perfectly cool, calm and collected. The jury apparently paid no attention to his claim of self-defense, or of passion. The testimony was calculated to lead them in that direction. If appellant had been instrumental in breaking up the- home of another man, this might have been considered by the jury as a sufficient reason for his failure to manifest any resentment or passion
upon the various prior occasions when he claims his wife told him of insulting- conduct amounting to actual violation of her person by deeeaséd. The jury may have concluded that inasmuch as appellant’s claim that his wife told him on an occasion some time before the killing, that deceased came to their home and violated her, and that this did not produce in his mind that passion conceded by our statute to the frailty of human nature, and did not cause him to then seek deceased and kill him or wreak vengeance upon him, that there was no reason for concluding that this homicide was produced by such passion at all, and in such case they were justified in finding him guilty of murder.
Finding no error in the record, the judgment will be affirmed.
Affirmed.