Paulin v. State

White, Presiding Judge.

Henderson was killed on the seventh day of February, 1885. Our opinion affirming the judgment in this case, at a previous day of this term, was based upon the assumption that appellant’s letter to W. A. Brosvn, as set forth in the statement of facts, was correctly dated “Jany 5,” and that, if such was the case, then it was established by said letter that defendant knew, at the time it was written, of Henderson’s adultery with his wife, and that if he did, in fact, know it at that time, he had, by his subsequent acts and conduct towards Henderson, deprived himself of the right to claim that the killing was on account of Henderson’s adultery with his wife,— the killing being a month after he knew the fact, and after he had had several opportunities to take Henderson’s life, and had not done so.

In this aspect of the case, the charge complained of as erroneous could not possibly have affected the rights of appellant, notwithstanding that it might have been abstract" error; and, having been corrected in the subsequent portion of said charge, when the law was applied directly to the facts, we held that, taken as a whole, the charge was correct.

But on this motion for rehearing it has been made to appear to us that defendant’s letter, instead of having been written as dated, on January 5, was in fact written on February 5, and but two days prior to the killing. Such being the case, the evidence establishes the killing on the first meeting after appellant had been informed of the adultery of the appellant’s wife with the deceased.

One of the adequate causes expressly enumerated in the statute as sufficient to reduce a homicide from murder to manslaughter is: “Adultery of the person killed with the wife of the person guilty of the homicide, provided the killing occur as soon as the fact of an illicit connection is discovered.” (Penal Code, Art. 597, subdiv. 3.) In such case, the provocation is not required to arise at the time of the commission of the offense, because the adultery may have occurred before the killing, and yet the killing would be only manslaughter, provided that the killing occurred as soon as the fact of an illicit connection had been discovered by the husband. It is manifest that in such case it would be, to say the least of it, not only misleading, but erroneous, to charge that “the provocation must arise at the time of the commission of the offense,” and that “the passion is not the result of a former provocation,” as stated in subdivision 1 of Article 594 of the Penal Code.

Opinion delivered June 2, 1886.

The same rule obtains as in cases of insulting words and con-., duct towards a female relation. In all this class of cases the provocation arises before the commission of the offense, and consequently the passion is, ordinarily, in fact the result of a former provocation, and not one arising at the time of the commission of the offense. The charge of the court, in this instance, was not only erroneous in the particular complained of, but defendant excepted to it at the proper time (Phillips v. The State, 19 Texas Ct. App., 159), and reserved a bill of exceptions to the same, which is incorporated in the record. A charge is required to distinctly set forth the law applicable ,to the case. (Code Crim. Proc., Art. 677.) “And if it fails to do so, and an exception is reserved to it as shown by bill of exception, on appeal to this court, then it is the duty of this court to reverse the case for the error, without further inquiry as to the effect such error may have had upon the result of the trial.” (Niland v. The State, 19 Texas Ct. App., 166; Code Crim. Proc., Art. 685; Bravo v. The State, 20 Texas Ct. App., 188; Clanton v. The State, 20 Texas Ct. App., 615.)

Because of the error in the charge of the court as pointed out by defendant’s bill of exceptions, our judgment heretofore rendered affirming the judgment in this case, is set aside, the rehearing is granted, and, on account of said error, the judgment is now reversed and the cause remanded.

Reversed and remanded.