Foreman v. State , 33 Tex. Crim. 272 ( 1894 )

DAVIDSON, Judge.

Application for continuance was made for the testimony of three absent witnesses, by whom appellant expected to prove communicated threats made by deceased to whip him, “if he had to kill him in doing so.” One of the witnesses appeared during the trial, but was not called on to testify. Why this was not done is not explained. ' The combat being a mutual one, this testimony was not material in this case. Deceased proposed to appellant to retire to the “woods” and settle their grievances. The defendant accompanied him to the designated place, seized a large stick, and with it slew his adversary. The deceased was unarmed, having left his gun at the house. The evidence clearly discloses that the combat was to have been without arms or weapons. This being the case, self-defense was eliminated from the case, and in view of the fact that the conviction was for manslaughter, with the minimum punishment assessed, we are un able to appreciate any bearing tbis evidence could bave bad upon tbe case favorable to tbe defendant. Pruitt v. The State, 30 Texas Crim. App., 156.

But if tbe evidence was material, it could bave been shown by tbe witness attending tbe trial. Not only so, but threats made by deceased were in fact proved on tbe trial. These were not denied or contradicted by tbe State, nor were they a disputed issue on tbe trial. There was no error in refusing tbe application. Tbe new trial on tbis ground was properly refused.

Tbe court instructed the jury: “Where tbe parties engage in mutual combat and fight together willingly with deadly weapons in a manner calculated to cause tbe death of both or either, tbe tilling, should it occur, will ordinarily be murder on tbe part of tbe slayer; and where parties agree to fight in mutual combat with their bands and fists, in which no deadly weapons are to be used, and one party take an undue advantage of tbe other, and kill him with a deadly weapon, such killing will ordinarily be murder on tbe part of the slayer.” Exception was reserved to tbe charge. Appellant was acquitted of murder. Tbis charge was upon tbe effect of evidence, and states that effect to be a rule of law in ordinary cases. Whether such killing is murder in either degree or manslaughter must depend upon tbe facts attendant upon tbe case on trial. It is not matter of law in either case. The condition of tbe mind, in such state of case, is not fixed by law, but must be ascertained from tbe facts adduced in evidence. Whether tbe killing occurs in mutual combat or otherwise, tbe nature, character, and degree of such homicide will depend upon tbe condition of tbe mind of tbe slayer; and tbis must be ascertained from tbe circumstances of the particular case. This condition of tbe mind, whether cool and sedate, or inflamed and excited, or aroused to such sudden passion as to render it incapable of cool reflection, induced thereto by an adequate cause, is not to be determined by tbe law as matter of law, but is to be solved from tbe facts by tbe jury. These were general remarks by tbe court. Following these remarks tbe court properly applied tbe law to tbe facts of tbe case. Was it possible for tbe remarks of tbe court to bave injured appellant? That they did not affect tbe jury is evident, because manslaughter, and not murder, was tbe offense found, and no honest jury could bave acquitted or found less than manslaughter under the circumstances of tbis case. Self-defense and tbe law of retreat are not issues in tbis case under tbe evidence before us.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.