Citations
- 77 Tex. Crim. 522
Full opinion text
PREN0DERGAST, Presiding Judge.
Upon a trial for murder appellant was convicted of manslaughter and assessed the highest punishment.
In view of the disposition we make of this ease we will give no extended statement of the evidence. Unquestionably the evidence raised, and it was the duty of the court to submit, the issue of murder, and the court did not err in so doing. However,- under the law, As appellant was acquitted of murder, of course, that issue can not be submitted in another trial, although it may be proper for the court, in order to properly submit the issue of manslaughter, to inform the jury what is murder as is frequently necessary to do when an accused is tried for manslaughter only.
By appellant’s testimony alone self-defense was raised and this issue, based on his testimony, was as favorably submitted in his behalf by the court’s charge as the law and facts would authorize. However, after thus submitting the issue the court added thereto subdivision 14, as follows: “You are further instructed that in exercising his right of self-defense the defendant is permitted only to use such degree of violence as it reasonably appeared to him at the time and place was necessary to prevent or protect himself against such unlawful violence.” In proper time appellant specially excepted to this. We think it clear under the authorities that this instruction under the facts of this case should not have been given. Branch’s Crim. Law, sec. 451.
The court refused to submit a charge on self-defense based on threats. This was properly excepted to and the point saved, and appellant even requested a special charge on the subject. In our opinion the evidence raised this issue and the court erred in refusing to submit it.
In the charge on manslaughter the court properly told the jury that adultery of the deceased with the wife of appellant was adequate cause. He further told them that if the defendant believed that the deceased had improper relations with his wife, this would constitute adequate cause. Appellant complains of these charges in that the court should have gone further and told the jury, as requested in his special charge, that if they believed from the evidence that appellant believed that deceased had had improper relations with appellant’s wife on the occasions of their meeting at a certain place in Dallas and at a certain other place in Fort Worth or either, then such belief by him would be real to him, whether such improper relation was in fact had or not. We think it- may have been proper to have given such an instruction under the facts of this case, but it is not such error as we think would 'justify a reversal. However, it might be better for the court to embrace this matter in a proper charge on another trial.
In the opinion of this writer the letter of appellant’s wife to deceased, dated September 12, 1914, in view of appellant’s testimony and the letter of the deceased in reply to appellant’s wife introduced in evidence by him, was properly admitted in evidence. His brethren, however, incline to the opinion that the contents of the letter should not have been admitted in evidence, but the fact that appellant received a letter from her and the registry receipt for it to which his answer to her was in reply, was admissible in evidence.
There is nothing else raised which presents any error or needs any discussion. Owing to the near approach of the adjournment of this court for the term and the press of many other matters a full discussion of the questions decided is pretermitted.
For the errors above pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.
ON REHEARING.
October 13, 1915.
PRENDERGAST, Presiding Judge.
We think the original opinion, wherein we held the court on another trial should charge as insisted by appellant to the effect that if appellant believed deceased had had improper relations with his wife “then such belief by him would be real to him,” is not correct, but the court’s charge as given is sufficient. With this correction in the original opinion the motion for rehearing is overruled.
Overruled.