Corbitt v. State , 72 Tex. Crim. 396 ( 1914 )

When the original opinion was handed down I added a few remarks indicating my dissent from the majority opinion. The court charged the jury that "an assault and battery, causing pain and bloodshed; or any condition or circumstance which is capable of creating and which does create sudden passion which renders the mind of a person of ordinary temper incapable of cool reflection, is deemed adequate cause." Judge Harper in the opinion concedes this to be error, because the statute provides that it is only an assault and battery causing pain or bloodshed which constitutes adequate cause. Under the statute itself, and under all the authorities, either will constitute adequate cause. It is not necessary under any circumstances that the two shall be combined. He says, however, that this was cured by the court's charge. This is an application of the law by the court: "If you believe from the evidence that prior to or at the time of the cutting, defendant and deceased had a difficulty and that after said trouble deceased threw a brick bat at defendant and reached for or had another brick, and all or any of said alleged facts, or that any other acts of deceased prior to or at the time of the cutting, created in the mind of the defendant sudden passion which rendered his mind incapable of cool reflection, and you believe beyond a reasonable doubt that defendant cut deceased with a knife and killed deceased, and you further believe," etc. An inspection of this charge does not show and utterly fails to disclose the fact that the court instructed the jury that if deceased struck appellant with a brick bat causing pain, it would be adequate cause. The charge narrates a lot of the circumstances, but that is not sufficient where the statutory ground is the basis of the charge. Quoting from the original opinion we find this language: "Then what portion of his testimony does raise the issue of manslaughter? He testified further that deceased then went into the street and picked up a brick and threw it at him, but missed him, and then stooped and picked up another brick, and by this time he had run to him when deceased hit him over the head with a brick and knocked him down. This would be adequate cause to reduce the offense to manslaughter if it caused such passion as to render the mind incapable of cool reflection." An investigation of this charge, either by a casual or careful reading of it, fails to show that this issue was ever submitted to the jury by the court in its charge. I have copied above the definition, and then the application. Under all the authorities in Texas where the cause is statutory, the court must instruct the jury pertinently that if this statutory cause existed and produced such passion as to render the mind incapable of cool reflection, the case would be manslaughter. Mr. Branch lays down the rule tersely and correctly as follows: "If there is evidence of a condition or circumstance made adequate cause by statute as an assault causing pain, etc., it is error to leave it to the jury to find whether it constitutes adequate cause; charge should state that it is adequate cause." Branch's Crim. Law, section 512. The authorities are so numerous as collated by him it is unnecessary here to collate them. They will be found by turning to this section of Mr. Branch's Criminal Law. Again he lays down the rule: "If a cause made adequate cause by statute is in evidence, charge must not only tell jury that same is adequate cause, but must apply the law to the facts, and tell them (for example) that if blow was struck and that it caused pain or bloodshed, and that it aroused defendant to such a degree of anger, rage, sudden resentment or terror as rendered his mind incapable of cool reflection at the time of the homicide, that he should not be found guilty of anything higher than manslaughter. Low v. State, 20 S.W. Rep., 366; Attaway v. State, 41 Tex.Crim. Rep.; Ware v. State, 49 Tex.Crim. Rep.; Horn v. State,50 Tex. Crim. 404; Gillespie v. State, 53 Tex.Crim. Rep.; Brown v. State, 54 Tex.Crim. Rep.; Griffin v. State,40 Tex. Crim. 312." If there is cause independent of the statutory cause, and both causes existing, that is, if the statutory adequate cause is testified, and there are other independent facts and circumstances which are capable of producing the requisite sudden passion, then both must be given in charge to the jury in submitting manslaughter. It will not be sufficient to combine the two in the general charge. The jury must be told if adequate cause existed, mentioning it, and if sudden passion was present, manslaughter should be awarded, or if there are other facts and circumstances in the case producing sudden passion, then manslaughter would be in the case, and where they both exist both must be charged; especially so if the punishment inflicted is higher than the minimum. There is no question, I take it, from even the original opinion of the majority that the deceased struck the defendant on the head with a brick bat, and this being the attitude this phase of the case manslaughter should have been given specifically with reference to this statutory adequate cause, and it is error and fatal error not to give it, and it has been so held under all the authorities so far as I am aware. I do not care to go into an extended discussion of the matter. This charge is wrong and fatally so, and in the face of all the authorities. This judgment should be reversed and the cause remanded, and because it has not been I enter most respectfully my dissent.