Thomas v. State , 48 Tex. Crim. 67 ( 1905 )

DAVIDSON, Presiding Judge.

Appellant was convicted of murder in the second degree, the punishment being fixed at confinement in the penitentiary for a term of fifteen years.

It is not necessary to discuss the application for continuance under the disposition to be made of the case. The charges on self-defense, as given by the court and supplemented by the special instructions given at the instance of appellant, we think sufficiently present that view of the case. We are of opinion, however, that a charge on manslaughter should have been given. The case made by the State shows sufficient testimony, perhaps, to justify the court in submitting the issue of murder in the second degree; but some of the testimony is to the effect that deceased was in a difficulty or had. just gotten out of a difficulty with the two brothers of appellant, in which he had fired at them twice. Appellant was at his residence a short distance away, and heard the difficulty; and was sufficiently apprised of the fact that his brothers were engaged in this difficulty with deceased. He got a pistol, went to the scene of the trouble, and became engaged in an altercation with deceased. This all occupied a very few moments. As he came up, deceased made some remark to the effect: “Yes, there is another one of those God damn Brazos bottom sons of bitches. I am going to kill.” He halloed, “Look out,” and fired. Just as he fired, appellant also fired. There was also testimony to the effect that while deceased did not fire at appellant he turned towards him and made the remark above imputed, and started in the direction of appellant, when appellant fired. If upon ascertaining the fact that his brothers were being shot at by deceased, he went to their rescue, with his mind in such an inflamed condition, by reason of that fact that he was incapable of cool reflection, these facts called for a charge on manslaughter. In going to the rescue of his brothers and to their assistance, thinking they were being killed, and on reaching the place where deceased was, and believing his brothers may have had their lives taken, and deceased started towards appellant in a threatening manner, this would call for a charge on manslaughter. Without going into a detailed discussion of the testimony and the law applicable thereto, under the facts in this record, we believe that the Gufliee case, 8 Texas Crim. App., 187, is directly in point; and under that authority, the charge on manslaughter should have been given under the facts. We have not undertaken here to give a detailed statement of the facts, as the record is rather voluminous. But we are of opinion that the charge on manslaughter should have been given. Because it was not, the judgment is reversed and the cause remanded.

Reversed and remanded.

Henderson, Judge, absent.