Williams v. State (284 S.W.2d 151, 1955)

DAVIDSON, Judge. •

Murder is the offense, with punishment assessed at six years in the penitentiary.

The undisputed evidence, as shown by appellant’s , .written-' confession, which was placed in evidence by the state, and also by his testimony supported by the physical facts, shows that appellant killed deceased when he found him and his (appellant’s) wife in the bedroom of his home in bed together, each nude and in each other’s embrace. - • : i

Art. 1220, P.C., has been a part of the statute law of. this, state throughout the years. It reads, as follows: -

“Adultery .as justification

“Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, •provided the killing take place before the parties to -the act have separated.Such circumstances cannot justify.- a homicide where it appears that there has been, on the part of the husband, any connivance in or assent to the adulterous connection.”

We are aware of no -case where the facts more abundantly establish the elements of this statute' than' thosq here presented. The trial court so recognized, and instructed the jury in accordance therewith.

In his charge upon that justification, the trial court required the appellant to establish the facts of justification beyond a reasonable doubt. - -

Appellant’s exception that such charge placed upon him the burden of establishing his defense was well takefu All that'the law requires; under such, circumstances, is that the jury entertain a reasonable doubt of such facts. See Tucker v. State, 137 Tex.Cr.R. 112, 128 S.W.2d 402; Johnson v. State, 150 Tex.Cr.R. 411, 201 S.W.2d 832.

For the error discussed, the judgment is reversed and the cause remanded.