Lienpo v. State , 28 Tex. Ct. App. 179 ( 1889 )

Willson, Judge.

It appears from the testimony that defendant’s statements made to the justice of the peace, as testified to by the witnesses Hill and Gilbert, were voluntarily made by him after he had been fully warned and cautioned by said justice of the peace that any statement he might make about the killing might be used in evidence against him. We think said statements were admissible as evidence against him under article 750 of 'the Code of Criminal Procedure. That at the time of making said statements he was in an intoxicated condition did not render his said statements incompetent evidence, as it did not appear that he was intoxicated to that degree that he was incapable of understanding the warning and caution administered to him, nor incapable of making an intelligible statement of the cause and circumstances of the homicide. His mental condition at the time of making said statements was a proper matter for the consideration of the jury in weighing the evidence, but was not a sufficient ground for excluding said statements from the jury.

We are unable to determine from defendant’s bill of exception that an error was committed in excluding the depositions offered by him. It does not appear from the bill that said depositions had been filed in the cause at least one entire day before the commencement of the trial. It is true that the objection made to the depositions was merely to the form of taking and returning the same (Adams v. The State, 19 Texas Ct. App., 250), and if the depositions had been filed in the cause one entire day before the commencement of the trial, said objection should not have been entertained unless made in writing, and notice thereof given to defendant’s counsel. Rev. Stats., art. 2235; Code Crim. Proc., art. 762. We must presume that said depositions had not been filed in the cause the requisite length of time, and that therefore the court did not err in excluding them because they were not taken and returned by an officer authorized by law to take them. A notary public is not an officer authorized by law to take depositions in criminal cases when such depositions are taken out of this State. Code Crim. Proc., art. 760.

As we view the evidence it demanded instructions upon the issue of manslaughter. It appears from the evidence that the homicide was committed by the defendant voluntarily and under the influence of passion. It also appears that on the day previous to the homicide the deceased had twice assaulted, heat, and abused the defendant, and the defendant testified that a moment before the killing the deceased again insulted and threatened him with violence. This testimony we think presented the issue of manslaughter. It should have been submitted to the jury to determine whether or not the homicide was committed under the immediate influence of sudden passion arising from an adequate cause. Defendant requested a special charge upon this issue, which the court refused to give, and did not submit the issue to the jury, concluding, we presume, that the evidence did not fairly raise such issue. This omission in the charge is the only error in it, but as this error is material, the judgment must be set aside.

Wherefore the judgment is reversed and the cause is remanded.

Reversed and- remanded.

Hurt, J., absent.