Full opinion text
PRENDERGAST, J. 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 ease. It is reported in 52 Tex. Cr. R. 591, 108 S. W. 365. 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 10 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 exceptions 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 30 days after adjournment to prepare and file the statement of facts and bills of exceptions. On December 30, 1910, the court granted 30 days from January 3, 1911, and on the latter date again extended the time for 10 days from February 1, 1911. The statement of facts and bills of exceptions 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, 103 Tex. 554, 131 S. W. 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 (Acts 32d Leg. c. 119, § 7) expressly, in effect, provided that statements of facts filed at any time within 90 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 (Acts 31st Leg. 1st Extra Sess. c. 39), 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 exceptions is therefore denied. Appellant has preserved and presents questions raised by seven bills of exceptions, 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. Roberson, 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 were 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. Roberson, tbe wife of tbe deceased, testified that just a few minutes prior to tbe shooting sbe saw tbe appellant and bis cousin, Bert Carutb, pass ber bouse, where sbe was preparing vegetables for ber dinner, going in tbe direction where ber bus-band was plowing in tbe field, about 240 feet from ber doorsteps; that in a few minutes after they passed sbe beard a pistol fire. Sbe then testified: “X got up and went out on tbe front gallery to see what it meant. I could see my husband running around tbe horses’ beads, and saw tbe smoke come out towards him. Tbe horses’ beads were turned east. My husband ran around on tbe north side of tbe horses, and, after I beard tbe first gun fire, I went out on tbe gallery, and saw my husband rubbing around tbe horses’ beads, and saw tbe smoke, and I ran into tbe yard, and, as I was near tbe front gate, beard tbe second shot that I beard, and, as I was going up tbe road there were three more shots fired after that, and I saw Redman bolding a pistol in bis band, shooting at my husband. I run up tbe road hollering and screaming for him not to shoot my husband any more. Wiben I stopped, my husband bad fallen. I never went to where be was. I stopped before I got there. He bad fallen, but did not lay on tbe ground but just a few seconds, and be got up and steadied himself on bis 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 be was in tbe field. He started towards me, and defendant turned around, and saw that be was getting up and he began to follow him, reloading bis pistol as he followed him. He was holding tbe pistol in his left hand, and putting in tbe cartridges with his right. Defendant was about 30 feet away when be saw my bus-band getting up, and was in about tbe center of the public road, I think, when be turned around. My husband started angling southwest, and was going towards tbe bouse, which was southwest from where be had fallen. There was a barbed-wire fence around tbe field, but there was a gap in tbe fence, and my husband bad fallen about 25 feet from tbe gap. Tbe horses ran away immediately after he fell. When defendant turned around and saw my husband get up, he turned, and was walking towards my bus-band, and tbe defendant was going in a rapid walk. Defendant turned before my husband got to tbe gap, but did not start until be bad reached tbe gap. He bad 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 tbe 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.’ Sbe was right behind me all the time. I guess I was about 25 feet from my husband when Redman passed me going up to him. Tbe defendant made no reply to what X said to him. He never said a word. It is about 115 feet from tbe gap on tbe east side to tbe gap on tbe west side of tbe road. My husband went through tbe west gap, and defendant was about 25 or 30 feet behind him, and it’s about 140 feet from this gap to my bouse. There is a barn just on tbe inside of tbe west fence, and about 18 or 20 feet from tbe gap on tbe west side, and tbe barn is a little northeast of tbe bouse. My husband went a few steps in tbe direction of tbe bouse, and then turned, with Redman following him, and said, ‘Go off and let us alone; go off and let us alone,’ and be then turned and went a little northwest into tbe barn; that is, in tbe seed shed, which was' on tbe east side of tbe barn. Defendant was then going in at tbe gap. It is about 25 feet from tbe gap to tbe door of the seed shed. Tbe seed shed was on tbe north side of the barn, and tbe barn was an old log bouse with tbe shed on tbe east side, and in this shed tbe door opened out east, and my husband went into this door and held tbe door to after him. There was nothing on the inside to fasten it with, and there was about six inches of space under tbe door and some slats to bold the seed in, and be tried to bold tbe door to underneath tbe slats. I saw bis fingers on tbe outside there, bolding tbe door to, and defendant walked up and shoved his fingers away, and shot him there four times. I was just on tbe inside of tbe 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.’ Tbe 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 tbe transaction. Jeffries v. State, 9 Tex. App. 598; Long v. State, 48 Tex. Cr. R. 175, 88 S. W. 203; Hancock v. State, 47 Tex. Cr. R. 3, 83 S. W. 696. By appellant’s second bill he claims that the court erred in permitting, on cross-examination of bis witness Bilbry, tbe state to prove that the deceased was assistant superintendent of tbe Sunday school at tbe James scboolbouse, which was near tbe seen¿ of tbe killing, and where the Sunday school of the community was held. Tbe objection to this testimony was that it was an effort to bolster up tbe character of the deceased when no attack bad been made upon bis character or reputation by tbe 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 tbe jury, and that it was illegal, incompetent, and not' binding on tbe appellant and prejudicial to him, and calculated to arouse sympathy in favor of tbe deceased, irrele-Taut 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 Kit-tie 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 sehoolhouse; and that this was a meeting with deceased after defendant had been informed of his statements about Kit-tie Caruth.” The evidence by this witness on this point was that he saw the deceased on Sunday May 12th at Sunday school at this sehoolhouse, 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 sehoolhouse 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 baby 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 Kittie 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. Eor 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 Oaruth 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 Oaruth 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. Vaughan, 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 post office 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 Vaughan 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. Vaughan or any one 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 Oaruth, 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 the 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 AVes Holmes was the father of Kittie Oaruth’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 Roberson, 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 ease 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. Roberson, as to his whereabouts — said testimony being offered by defendant as original evidence as well as to affect the credibility of Mrs. Roberson 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. Roberson or Kit-tie 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. Roberson, 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 Car-uth, 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 Car-uth, 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. Roberson 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. Roberson, 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 Roberson, 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 Tex. Cr. R. 596, 108 S. W. 368), 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 thp 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 12th. That after áll 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 six-shooter. That on Sunday May 19th the deceased was at the schoolhouse in which the Sunday school was conducted; that the appellant w;ent 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 19th, 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 Kit-tie 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 connected 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 Roberson the nest morning, and that, if he (Roberson) told him to his face what he had been telling about Kittie Caruth, 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 Roberson’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 hill 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 Mr. 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. X 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 cannot be manslaughter, but must be murder in one or the other degrees. In McKinney v. State, 8 Tex. App. 645, Presiding Judge White, for this court, said: “A killing upon such sudden passion as is mentioned may be 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 [1879] art. 602. 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 [1879] art. 596), and manslaughter cannot be predicated upon any voluntary/ homicide upon sudden passion not arising from an adequate cause. Penal Code [1879] art. 593.” This decision has been repeatedly quoted and approved on this point. See Clore v. State, 26 Tex. App. 624, 10 S. W. 242; Hill v. State, 11 Tex. App. 456; Neyland v. State, 13 Tex. App. 536; Childers v. State, 33 Tex. Cr. R. 509, 27 S. W. 133; Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; Miller v. State, 31 Tex. Cr. R. 639, 21 S. W. 925, 37 Am. St. Rep. 836; Ex parte Jones, 31 Tex. Cr. R. 446, 20 S. W. 983. And many other eases might be cited. It is elementary that in considering the charge of the court the whole of it must be 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 criticism 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, th.e judgment will be affirmed.
On Motion for Rehearing. This case was decided and the opinion rendered herein on November 1, 1911. At that time there was no dissent from any member of the court. Within 15 days appellant filed his motion for rehearing presenting again the same questions that were presented, discussed, and decided in the original opinion. Upon consultation, in considering the motion for rehearing, Presiding Judge DAVIDSON indicated that he then differed with the court on some of the questions discussed and decided in the original opinion. The motion for rehearing, therefore, has not been acted upon earlier, awaiting an opinion by him on any question wherein he differed from the court. None has yet been prepared or shown us. Upon a thorough reconsideration of the case and the questions raised, discussed, and decided therein in the original opinion, we see no occasion now for writing anything further, as we believe all the questions have been correctly decided. However, if any dissenting opinion is hereafter filed in the case, the court may or may not, as it deems best, file an additional opinion herein on whatever questions an adverse opinion may be expressed in the dissenting opinion. The motion for rehearing is overruled.
DAVIDSON, P. J. (dissenting). This case was submitted on rehearing some time since. After a careful review of the record and the questions suggested for revision, I am firmly convinced the judgment should be reversed and the appellant awarded another trial. My Brethren reached the other conclusion, and therefore affirmed the case.' Mr. O. F. Greenwood, counsel for appellant, has filed an exhaustive brief and elaborate argument on the questions urged for reversal. I have carefully examined the questions in the light of the brief and argument, and believe that he is correct. Were I to write an opinion, I would but follow the general line of thought and authority which he has mapped out and cases cited. The argument is unanswerable, and the authorities cited by him support every proposition under which they are cited, and nearly all of the cases are decisions rendered by this court. These authorities are not discussed by my Brethren, but the effect of their opinion is in conflict with them, though they do not so state. Mr. Greenwood’s argument is elaborate, able, and exhaustive, and I hereby adopt it as my dissenting opinion. I do not wish to add anything to what he has written, which is as follows: “The appellant was charged by indictment with the murder of J. C. Roberson in Hill county, Tex., alleged to have been committed on May 20, 1907. Upon his first trial, which occurred in said county, he was convicted of murder in the first degree, and his penalty assessed at life imprisonment. Upon appeal, the conviction was reversed and remanded by this court. 52 Tex. Cr. R. 591, 108 S. W. 365. Subsequently the district court of Hill county, upon its own motion, changed the venue to Ellis county. There have been two trials in the latter county, and the present appeal is from the last trial. Appellant was found guilty of murder in the second degree, and his punishment assessed at 10 years imprisonment. The questions involved were all fully presented in motion for new trial, as well as in brief and oral argument upon original submission. These are again raised in appellant’s motion for rehearing. “The deceased was about 48 years of age, and with his wife and children resided upon his farm, a few miles west of Hills-boro, in what was known as the ‘James schoolhouse’ community. The appellant was 21 years of age, was reared in Goliad county, but at the time of the homicide was living with, and working as a farm hand for, the witness John Hooker in the same neighborhood. It appears from the evidence that he was never arrested before, and the record shows that, when he offered to prove his good reputation as a peaceable, quiet, law-abiding young man, the state in open court admitted that his general reputation was good. The undisputed record shows that the killing grew out of the fact that deceased had made a number of damaging statements against Blanche and Kittie Ca-ruth, imputing to each of them a lack of virtue and chastity. They were unmarried female cousins of appellant. They resided with their father and their brother, Bert, about 300 yards from deceased; the deceased being their closest neighbor. Their mother had been dead several years. Miss Blanche was between 17 and 18, and Miss Kittie between 16 and 17 years of age at the time of the homicide. The killing occurred upon deceased’s premises, between 9 and 10 o’clock in the morning. The appellant testified that the general reputation of both girls in the community for virtue and chastity at the time of the homicide was good, and this is not a controverted issue in the case. They moved in the best social circles of the neighborhood, and frequently visited in the home of deceased. It is also an uncontroverted fact in the record that deceased and appellant weré on the best of terms with each other up to the time that deceased began assailing the character of said girls, a few days before the killing, and that appellant visited in deceased’s home. The evidence shows that appellant was informed of what deceased had said about his cousins, and he testified that it greatly agitated and excited his mind, and that while in this state of mind he shot and killed deceased on account of what he believed to be slander against his cousins. Appellant interposed no plea of self-defense, but contended that he was not guilty of murder in either degree, but was guilty of only manslaughter, and this was his sole defense. The state contended that he was guilty of murder. The court submitted murder in both degrees and manslaughter to the jury. “There are a number of very interesting and vital questions involved in this appeal which cannot be appreciated or correctly solved without a clear, definite knowledge of the evidence, but with this knowledge they are of easy solution. The opinion of the court affirming the conviction does not present the questions, nor deal with them as presented by the record, in the light of the evidence. On Sunday, May 12th, preceding the killing on the 20th, deceased and witness R. F. Bilbry were at James schoolhouse at Sunday school and singing exercises. The deceased and witness walked out of the house and sat down in a surry, the deceased telling witness he wanted to talk to him. Witness testified among other things that deceased said to him: ‘Things were going on a little bad up at Caruths. He said there was a gang of boys around there all the time, and said that I had a boy that was going there some, and he said, “I feel that it is my duty, as a neighbor and as a friend, to tell you about it,” and he said .that Kittie Caruth was in a family way, and was six months gone; and I asked him, “My boy is not having nothing to do with Kittie Caruth, is he?” and he nodded. He says, “He is paying attention to Blanche, Kittie’s sisterand I asked him, I says: “Is both girls being talked about?” and he says “Yes,” and I asked him if, “Wes Holmes had not skipped the country,” and he said that he had, and he said that Arthur Redman was too familiar with the Caruth girls.’ It appears from the record that these were the first statements deceased made against the girls, and this was eight days pri- or to the killing. It might be stated here that Wes Holmes was a cousin of deceased’s wife, was a single man, and had been in the neighborhood for something over a year, having come from Arkansas. He had been gone from Hill county just two days when deceased made said statements. Late in the afternoon of the day on which the above conversation occurred deceased and wife went to the home of the witness W. A. Wallace, who lived a few hundred yards east of deceased. Wallace testified that he and deceased walked out in the garden, and while there deceased asked the question ‘if I had heard the news, and I asked him what news. He said that Kittie Caruth was in a family way, and asked me if I had heard it, and I told him I had not. He said it was a common fact, and was positively so, and said that Wes Holmes, a relation of his, had left the country on account of it, and that he thought the charge was laid to Arthur Redman, and that it would be well for him to leave the country, if he wanted to avoid trouble.’ Witness testified the deceased said: ‘Mr. Caruth was a very vicious, drinking man, and that defendant would possibly get in trouble with Mr. Caruth.’ This was the second time in point of chronological order that deceased made derogatory statements. Witness testified that on the following ‘Wednesday or Thursday’ he saw appellant while plowing in Mr. Hooker’s field, and related to him what Roberson, deceased, had told him. Witness, testifying on this' point, said: T told him that he was accused of being the father of a child that was to be born to Kittie Caruth, according to Mr. Roberson’s statement, and that Wes Holmes had already left the country, and that Mr. Roberson had advised that he leave the country; that it would be best for him to leave the country. I told him that Roberson had said this. He stated to me that so far as he was concerned he was innocent. I believe the words he used were that it was a damn lie, that he would investigate it, and said he did not believe it as to the girl.’ This was the first time that appellant heard of any statement made by deceased against either of his cousins, and this information imparted to him involved only Kittie Caruth. He had not yet been informed of any statement against Miss Blanche. “The testimony of the witness John Hooker, whose farm was just east of deceased’s farm, shows that on the following Saturday morning, two days.prior to the killing, that witness and deceased engaged in a conversation at the dividing fence. Appellant was plowing in Mr. Hooker’s field at the time. Among other things, witness states: T saw the deceased, John Roberson, about 8 o’clock in the morning. We met at the dividing fence. A conversation began about the crops in general, and so on, and in the run of the conversation I asked him if he thought the report on Kittie Caruth living near him was true, and he said, “I reckon so,” and went on to say that Kittie Caruth had told his wife that her monthly periods had 'stopped on her, and asked her as to what she should do about it, and that in November that her sister, Blanche, had' gone to his wife (Mrs. Roberson) about it, and had told his wife that she was afraid that her sister was in a family way, and that that' was what was the matter with her, and he (Roberson) said that his wife told her that if she thought that was what was the matter, that she ought to talk to her about it, as she was her sister, and the person to talk to her about it, as she had no mother. He said that when she talked to her about it that Kittie said it was not true, that she was not in a family way, and' Mr. Roberson said, “She looks like it to me.” I asked Mr. Roberson then who was suspicioned in the matter, and lie said “that boy,” and nodded'bis bead in tbe direction of Redman, wbo was plowing in tbe field. “That boy, or Wes Holmes.” That Wes Holmes bad left' tbe country, wbicb made suspicion point to bim.’ Mr. Hooker’s evidence at another point shows that Roberson was on one side of tbe fence, and that witness and appellant were on opposite side. Appellant beard no part of tbe conversation, and, 'as appellant plowed by, be and deceased said ‘Good morning’ to each other. This was tbe first time that appellant saw deceased after Wallace had told bim of Roberson’s charges; and because appellant did not kill bim on this, tbe ‘first meeting,’ tbe prosecution claimed, be was guilty of murder. Up to this time appellant bad not'beard of any slanderous statements against bis cousin Blanche. He bad not beard of all tbe statements that deceased bad made as to Kittie. He bad not yet seen Kittie 'Garuth. He bad told Mr. Wallace that be believed Kittie was innocent, and that be ‘was going to investigate it.’ In view of the charge of tbe court, it is important to discover what knowledge came to appellant between tbe ‘first meeting’ and tbe time of tbe homicide, because this has a vital bearing on appellant’s legal rights and upon the charge of tbe court. “Sam James, an uncle of said girls, testified ‘that some time during tbe week preceding tbe killing on following Monday be met deceased in tbe road, and that deceased told bim that Kittie was in a family way, and six months gone, and charged that Arthur Redman was tbe “daddy of it,” and that Wes Holmes bad left tbe country, and that Mollie (bis wife) bad told Wes that be bad better open his eyes, and be said Wes was gone, and bad left no trace. He said that the boys were going there on rainy days and Sundays, and said, “You know bow it is when anything is loose in tbe country.” He said that Wes Holmes, Arthur Redman, Ed Bilbry, 'and Alex Hooker were going there. He said Blanche bad told Mollie (Mrs. Roberson) that her father came home drunk one night, and wanted her to sleep with bim, and told her to lie down on tbe bed with bim until be went to sleep, and that she laid down on tbe bed there with her father, and her father 'commenced feeling of her breast, and that she got up and left. He said that Blanche bad told Mrs. Roberson this.’ “Let it be remembered that appellant knew nothing of these charges made to Mr. James at tbe time be saw deceased in Hooker’s field. Appellant testified that be learned of said conversation on Sunday night before the killing, next morning. Tbe witness, Sam James, testified that on said Sunday night T told Mr. Wallace in the defendant’s presence what Roberson bad told me, and I told him that Roberson bad told me that Kittie was six months in 'a family way, and that Arthur Redman was tbe daddy of it.’ On Sunday, the 19th of May (one day before the killing), deceased and R. F. Bilbry met again at the scboolhouse. Deceased then asked Bilbry if be bad told bis (Bilbry’s) folks what he (Roberson) bad told bim on tbe previous Sunday, and Bilbry said: T told bim I did; that I bad a talk with Edgar (bis son) tbe next morning, * * * and he said that was all right, but be said, “Bert Garuth tackled me for tbe talk I made out there awhile ago, and I told Bert that this was no place for talking,” and be said, “I Just wanted to know bow 'to meet it.” ’ This was the evening before tbe killing. Tbe evidence shows that late Sunday evening appellant went to the Garuth home, and bad a talk with Kittie Caruth, in tbe presence of her sister Blanche and brother Bert. Appellant testified: T went home with Bert that evening. I went up there to find out about this report. When I got to tbe house I saw Kittie and Blanche there. * * * Bert Caruth was present at the time. Kittie said that Roberson was just telling that to try to ruin her in the neighborhood, and that she didn’t like it, and said it was a lie.’ “Upon recross-examination, Kittie Garuth, wbo testified as a state’s witness, admitted that late Sunday evening, before tbe killing next morning, appellant talked to her, and, among other things, she testified: ‘It was late Sunday evening. Blanche and Bert were both present. Arthur told me that he heard about what Roberson was saying about me, and he asked me if there was any truth in it. I told him it was a positive lie, and I told him that John Roberson was simply trying to ruin me in the community.’ It should be remembered that, when Wallace informed appellant on preceding Wednesday of said charge by deceased against Kittie Caruth, appellant said he was innocent, and that he believed the girl was innocent, and that he was going to investigate it. He did not have this assurance from her at his ‘first meeting’ with deceased, because he had not seen her. After seeing and talking with said cousin, which was .between sundown and dark, appellant went to the home of the witness W. A. Wallace. We will now deal with what occurred on said night, prior to the homicide next morning. “Wallace testified: ‘The defendant was at my house that night from 16 to 30 minutes, and Bert Garuth and Edgar Bilbry were with him. When defendant 'came in the house, I asked him' to be seated, that I was busy at the phone, and could not talk to anybody, and he made the statement “that I had never told him anything that compared with what was told him that evening.” * * * While he was at my house that night before I went to Captain James, he seemed to be restless- and did not keep his seat long. He was up, and attempted a time or two to talk to me, and I asked him to be seated, and lie finally got np, and went ont on the gallery.’ What had he learned that night that caused him to say to Wallace, ‘You have told me nothing compared with what I have heard to-night’? We shall see. “Edgar Bilbry’s cross-examination upon a former trial was reproduced by appellant. He had testified as a state’s witness upon such former trial, and died subsequently. He testified: ‘Up at Mr. Wallace’s that night (night prior to killing), Mr. Wallace asked me who told me that I had been going to Caruth’s at night, and in answer to Mr. Wallace’s question, in the defendant’s presence, I told him that my father told me, and the defendant heard this.’ Upon redirect examination he stated: ‘On Sunday night before the killing, while I was with Mr. Wallace and Arthur Redman on the porch, I told him that my father was told by John Roberson that it was talked around that I was slipping around to Caruth’s at night, and going in his house at night.’ “As to this conversation at Wallace’s on the Sunday night in question, the appellant testified: ‘Edgar Bilbry told me that night that Roberson had also been talking about Blanche Caruth and him, and had accused him of slipping in and of sleeping with her at night, and that I had been running a regular whore house there ever since I came to Hill county. That statement was false. I never carried anybody to my uncle’s house for immoral purposes, and I had never seen any act of prostitution there, and I had never seen any one take any liberties with either one of the girls. The girls were just like sisters to me since I had been there.’ “The witness W. A. Wallace and witness Claud Wallace both testified to the restless, agitated condition of appellant at said time and place. After this conversation at Wallace’s, the appellant, Bert Caruth, and Edgar Bilbry left for the purpose of going to Captain James’ residence. He was the grandfather of the girls. The witness W. A. Wallace followed them in a few minutes. Sam James was awakened, and then Captain James. Captain James, W. A. Wallace, and Sam James discussed the situation to themselves. The witness Edgar Bilbry in detailing what took place then testified: T remember that Bert Caruth made the statement over there, while the matter was being discussed, that he had already investigated Roberson’s talk, and that his sister was innocent, and that there was no use to investigate it any further. The defendant seemed restless and bothered, and was walking around, backwards and forwards. Defendant remarked: “There’s them poor girls. They are motherless, and haven’t much of a father, and Roberson has throjvn out this talk against them, and has ruined them.” He said he felt like the girls were sisters to him, and I noticed that defendant was crying, and I heard him say that he was going to Roberson and talk to him like a gentleman, and try to get it straightened out peacefully. He said he was going down to see Mr. Roberson next morning, and would talk to him like a gentleman, and would expect Mr. Roberson to treat him as a gentleman. I heard Bert Caruth say that Roberson’s statements were false.’ “W. A. Wallace, in testifying as to what happened there, stated: ‘My business with Captain James was to talk over the report. While all this was going on, the defendant was walking up and down the road in front of the mail box. Sometimes he was sitting down and sometimes walking; would sit down a minute and then get up and walk. He was walking up and down the road, and appeared restless. * * * I saw the defendant and Sam James together near Mr. James’ house that night at the time I have already testified about, and they were having a conversation about the report.’ “The witness Sam James in testifying about said occasion stated: ‘Defendant seemed restless that night. When I first went out, he was sitting down on a box, with his head down. Then he got up and walked around two or three times. The other boys were standing there. I told Mr. Wallace in defendant’s presence what Roberson had told me.’ “Mrs. John Hooker, at whose home defendant lived, testified that during the latter part of said week she noticed the unnatural, restless condition of defendant, and that he lost his appetite. “Appellant, testifying as to what happened at Mr. James’ premises on said night, stated: ‘Captain James and Sam James and Mr. Wallace went off to one side and had a talk, and then came back where we were, and Captain James told us that they had decided to let older heads settle this, and I told them that Mr. Roberson had connected me with it, and I thought it my place to go and settle it myself, to go and see him next morning. I heard there that night that Mr. Roberson had told Sam James (I think it was Sam James doing the talking) that Roberson had told him that ever since I