Steen v. State , 88 Tex. Crim. 256 ( 1920 )

The State moves for a rehearing herein, urging that we were in error in holding that the issue of manslaughter was raised by the evidence and should have been submitted in the charge to the jury. It is insisted that appellant did not claim an intentional killing on passion, but that his act, if the cause of death, was not so intended; that appellant's testimony negatived the existence of passion, if adequate cause existed; and it is urged in the motion that appellant did not testify to that state of mind which raises manslaughter. We cannot agree to this, even if the question of manslaughter were to be decided solely from the testimony of the accused, which is not the case. Appellant testified that the conduct and language of the Tips boys, just a moment before the shooting, greatly excited and scared him, and whether that was true was for the jury. However, it is not necessary that the testimony of the accused be that which raises the issue of manslaughter. Indeed, he may assert that the killing was attributable to another cause than passion, but if the facts of the case in evidence fairly tend to indicate a homicide resulting from any such emotion of the mind as renders it incapable of cool reflection, it becomes the duty of the trial court to submit manslaughter and leave to the jury the ascertainment of whether or not such killing was the result of such cause, and whether or not such cause was adequate. We have held manslaughter should have been submitted even though the accused claimed the homicide an accident. Green v. State,58 Tex. Crim. 428; also when he claimed it committed in self-defense, Williams v. State, 61 Tex.Crim. Rep.; Lee v. State 54 Tex.Crim. Rep.; Miller v. State, 52 Tex. Crim. 78; also when he claimed an alibi, Lewis v. State,48 Tex. Crim. 614.

In the instant case, appellant's car was bombed by someone; several reputable witnesses so swore and no one disputed it. The car in which deceased was had just passed by this is not questioned, No other reason is assignable for appellant's hurried following of the car in which deceased was. Appellant says that when the bomb was thrown from the car in which was deceased, he called out to the occupants that they were injuring his car, and their reply was: "Go to Hell, nigger." When he overtook their car a few moments later, its occupants testified that he said: "Come out here and look where you hit my car," and that to their statement that they had not run into his car, he replied: "Well, if one of you sons-of-bitches come out here I will show you," and that in a moment they started back to town, but had gone only a short distance when appellant overtook them, and fired his pistol at their car, killing deceased. When he used to them the language above attributed to him, he was addressing four white men, a woman, and a little girl, whom he had never seen before in his life. The question naturally arises, why did he follow them? Why use such language? Why invite the punishment ordinarily following the use of such language to another, and especially in the presence of ladies? For the trial court to arbitrarily hold that a negro, or white man either for that matter, who uses such language, under such circumstances, and almost immediately thereafter shoots and kills, has a sedate and deliberate mind such as is necessary to make a homicide murder, is not in keeping with our views. For the trial court to refuse to submit manslaughter under such circumstances is an assumption of the power to decide that the appellant was not acting from rage or passion, but was acting with a sedate and deliberate mind; when, under all of our statutes and decisions, this power to so decide rests with the jury.

We have not undertaken to say whether the attendant circumstances showed this homicide to be murder or manslaughter; but we are undertaking to say that if a trial court, under facts like these, substitutes his decision where lies the exclusive province of the jury, the judgment cannot stand. Appellant may have committed an atrocious murder; he may merit death for his act, but he is entitled to a fair trial, in which the courts decide only the law and the jury the facts.

Being unable to agree with the contention of the State, its motion is overruled.

Overruled.