Connell v. State , 45 Tex. Crim. 142 ( 1903 )

This case was affirmed at a former day of this term, and now comes before us on motion for rehearing. In the original opinion, in passing on the court's charge on manslaughter, we merely said that it was not subject to the criticism of appellant's counsel. But since that time, on his motion for rehearing, appellant has called our attention directly to his bill of exceptions on that subject, and in the argument he has strongly urged that the case should be reversed because of a misdirection to the jury in the court's charge on manslaughter. We quote from the charge as follows, subdivision 4, defining adequate cause: "An assault and battery causing pain would or might constitute adequate cause." And again, in the latter portion of section 21: "You are further instructed that, if you find from the evidence that at the time of the alleged difficulty the deceased, John Connell, had made an assault upon defendant producing pain, and that such assault either alone or considered in connection with all the other facts and circumstances in evidence, was capable of creating in the mind of a person of ordinary temper such a degree of anger, rage, sudden resentment or terror as would render the mind incapable of cool reflection, and if you find the same created in the mind of defendant such condition at the time of the killing, the same might constitute adequate cause in the opinion of the jury." The contention of appellant is that the law makes an assault and battery causing pain adequate cause, and that said charge failed to tell the jury as a matter of law that same was adequate cause, but informed them that such might be adequate cause at their option. We understand it to be the settled law in this State that, wherever the evidence raises an issue, it is the duty of the court to instruct the jury upon that issue; and if the court had any doubt as to whether a charge on manslaughter should be given in the particular case, the doubt should be resolved in favor of the accused, and the charge be given. Halbert v. State, 3 Texas Crim. App., 656; Hill v. State, 5 Texas Crim. App., 2; Robles v. State, 5 Texas Crim. App., 346, Williams v. State, 7 Texas Crim. App., 396. When the court is required to give a charge on manslaughter, of course the same should be given fully and fairly; that is, it must be an affirmative, direct and pertinent application of the law of manslaughter to the facts of the particular case. McLaughlin v. State, 10 Texas Crim. App., 340; Neyland v. State, 13 Texas Crim. App., 550. Where the adequate cause proven is one of the statutory causes, as assault and battery by deceased causing pain or bloodshed, it is incumbent on the court to present this issue directly to the jury, and to inform them that it is adequate cause, because the statute makes it so. Hill v. State, 8 Texas Crim. App., 142; Foster v. State, 8 Texas Crim. App., 249; Warthan v. State, 41 Tex.Crim. Rep.. In Foster's case, supra, it was held that, if the court coupled pain and bloodshed, the charge would be reversible error, because either one was sufficient, and it increased the burden on defendant when a charge was given in the conjunctive instead of in the disjunctive. In Hill and Warthan cases, supra, it was distinctly held that where appellant's defense of manslaughter was based on an assault causing pain or bloodshed, it was the duty of the court to charge directly upon that issue, and to instruct the jury that such an assault was, as a matter of law, adequate cause. In this case there was evidence of a blow struck appellant by deceased before he made the attack on deceased which caused his death; and, under this view, the learned judge who tried this case evidently felt the necessity of instructing the jury on that subject. He told them, as indicated above, not that an assault causing pain was or would be adequate cause, but he told them that it might be. And again, in applying the law to the facts, he emphasized this view by telling them, if they found from the evidence that deceased made an assault upon defendant which produced pain, and that such assault, in connection with all the other facts and circumstances in evidence, was capable of creating in the mind of a person of ordinary temper such a degree of anger, etc., as would render the mind incapable of cool reflection, and that the same did create in the mind of defendant such condition, that the same might constitute adequate cause in the opinion of the jury. Thus leaving it optional with the jury — after they had found all of the other conditions to exist in the mind of defendant, if they found that a blow was inflicted on him by deceased which caused pain — to find, as they might see fit, whether or not the blow so inflicted was adequate cause. This, as we understand it, is directly in the face of the statute, which does not leave it optional with the jury when they find that a blow was inflicted which caused pain, and in that connection finding all the other elements, to then determine whether or not, in their opinion, such assault was adequate cause. If appellant was entitled to a charge on manslaughter at all, he was entitled to an affirmative charge on that subject fully and fairly presenting his defense. The charge in question, however, in our judgment, was calculated to cut him off from his defense of manslaughter altogether, inasmuch as it left to the jury to decide whether or not a cause denominated as adequate cause by the statute, was in fact adequate cause. The jury that tried this case evidently did not believe in appellant's theory of self-defense, and his only other defense to the State's accusation was manslaughter, and this charge cited above was nowhere else corrected, even if it be conceded that such a flagrant error could be corrected, had the effect to destroy that defense. We have given this question a good deal of thought, and we can not let this charge stand as a precedent, nor can we say that it was not calculated to injure his rights. On the contrary, as shown above, we believe that it deprived him of the defense of manslaughter altogether. Accordingly we hold that for this error the rehearing must be granted, and the judgment is reversed and the cause remanded.

Rehearing granted and reversed and remanded.