Christian v. State , 46 Tex. Crim. 47 ( 1904 )

Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for two years and six months.

Appellant complains of the following portion of the charge of the court: "If you believe from the evidence beyond a reasonable doubt that defendant with a deadly weapon, or instrument reasonably calculated and likely to produce death, by the mode and manner of its use, in a sudden transport of passion aroused by adequate cause, as the same is herein explained, and not in defense of himself against an unlawful attack reasonably producing a rational fear or expectation of death or serious bodily injury," etc., you will find defendant guilty of manslaughter. We do not think the word "rational" complained of by appellant is more onerous upon him than the word "reasonable" would be. In fact the word "rational" in the connection here used is more favorable to appellant than the word "reasonable." A fear might be rational and not reasonable. However, we note in a subsequent portion of the charge that the court in a very admirable way submits the issue of self-defense to the jury, charging that if he had a reasonable doubt, etc. After charging on self-defense, the court adds the following clause: "unless you further believe from the evidence that the killing was done in a mutual combat between the defendant and Luke Sturdevant, as hereinafter charged upon." Appellant insists that this charge is erroneous, and cites us to Vann v. State, 77 S.W. Rep., 813,45 Tex. Crim. 434, and Drake v. State, 77 S.W. Rep., 7,45 Tex. Crim. 273. We do not believe the authorities go to the extent that appellant here insists upon. We hold that this clause is a bare reference by the court to a subsequent portion of the charge which the jury should revert to in passing upon the state of facts then under consideration.

Appellant excepted to the twenty-seventh paragraph of the charge of the court, which is as follows: "If you believe that defendant did kill Luke Sturdevant, and if you believe that a short time before the killing defendant and Sturdevant had some trouble, and if you believe that at the time of the killing defendant and Luke Sturdevant met in the road on horseback, and if you believe beyond a reasonable doubt from the evidence that after some words they mutually dismounted for the purpose on the part of both of fighting, and if you believe that after so dismounting they mutually entered into a fight, then if you so believe you are charged that the law of self-defense would not apply, and a killing under such circumstances would be either murder or manslaughter owing to the other facts of the case; no matter to what extent he may have been reduced in the combat, and no matter which party struck the first blow or used the first violence." Appellant insists that the evidence does not support a charge upon mutual combat. The theory of the State was that appellant and deceased met in the road, and after some words mutually agreed to fight, each getting off of his horse; and that they voluntarily thereafter entered into a combat. We think the evidence sharply suggested this issue. Appellant insists even if the evidence raised the issue of mutual combat, the court erred in not telling the jury that defendant must voluntarily and willingly enter into the fight. In view of another trial we suggest that the charge be made more explicit upon this proposition. In other particulars the charge is correct. Appellant further insists that the charge of the court is incorrect in that the converse of the proposition contained in the above charge was not presented to the jury; that is, if he did not dismount for the purpose and did not voluntarily engage in the combat, then his right of self-defense would not be compromitted. In our opinion such a charge should have been given. Where evidence raises the issue of mutual combat, and there is evidence controverting this issue, it is proper and necessary for the court to charge on both phases; that is, tell the jury in substance, if the party entered into the combat voluntarily, his right of self-defense would be forfeited, and then again, tell the jury if he did not enter into the combat voluntarily, his right of self-defense would not be forfeited. The statute requires the court to charge upon every phase of the law applicable to the facts of the case. This phase of the law is applicable to the defense.

The only other question that we deem necessary to discuss is the bill of exceptions complaining of the use of the clothes of deceased upon the trial. Appellant's bill is not as explicit as it might be. However, we have heretofore held in Cole v. State, 75 S.W. Rep., 528, if the clothes do not illustrate and make pertinent some phase of the evidence relied upon by the State for a conviction, it is not proper to use the clothes for the mere purpose of inflaming the minds of the jury. Upon another trial, unless the clothes throw some light upon some controverted question or strengthen some phase of the State's case, it would not be proper to permit their introduction in evidence.

For the error discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.