Tow v. State

Willson, Judge.

I. Mrs. Cowan, who testified on behalf of the State, was the most material witness for the State. She was not only a witness in the case, but she was an important actor in the transaction which resulted in the death of her son, for the murder of whom defendant was being tried. After she had testified on the trial the defendant offered to prove that about two hours before the homicide, she said that she made her son, James Cox (the deceased), clean up the shot'gun and load it with twelve buck shot in each barrel, and told him if defendant came on her premises to kill him. This proposed evidence, upon objection made thereto by the State, was rejected. This ruling of the court was erroneous. If for no other purpose the offered evidence was competent to disclose the unfriendly state of the witness’s feelings towards the defendant, and the malignant character of such feeling. It is always competent to show the animus, the state of feeling of the witness toward the party against whom such witness testifies, and in such examination great latitude is allowed. (Watts v. The State, 18 Texas, Ct. App., 381.)

But we think this proposed evidence was pertinent, and material to the defendant, in a still more important respect, that is, to show an understanding, agreement and intent on the part of Mrs. Cowan and the deceased to kill the defendant in the event he came upon the premises, and to show that they made preparation accordingly, by loading the shot gun with buck shot. This evidence would have tended to show that in the attack made by Mrs. Cowan upon the defendant, she was joined and aided by the deceased, and that in fact the attack was preconcerted and jointly made by Mrs. Cowan and deceased. If the jury had been satisfied from evidence that such was the character of the attack made upon defendant; that, while Mrs. Cowan was pursuing the defendant with an axe, the deceased was preparing to shoot him with a gun, and did discharge one barrel of a double barreled shot gun loaded with buck shot at him, it is reasonable to suppose that the defendant’s plea of self defense would have been more favorably considered than if the jury had believed, as from the evidence adduced they were warranted in believing, that the attack upon the defendant was made by Mrs. Cowan alone, and the deceased shot at defendant, with no unlawful intent, but for the purpose only of protecting his mother from a threatened attack upon .her by the defendant, and that the gun so fired was not loaded with buck shot, but with small shot. We must hold, therefore, that the proposed evidence was not only admissible, but that it was material to the defendant, and that the rejection of it was error for which the conviction must be set aside.

Opinion delivered November 10, 1886.

II. Several objections are urged to the charge of the court. One material defect in the charge is the omission to instruct the jury in the law of manslaughter. We think the peculiar facts of the case entitled the defendant to such instructions. While the jury were not satisfied that defendant’s plea of self defense was sustained, considering perhaps that defendant provoked the •contest by going to the house of Mrs. Cowan, where he had been forbidden to go; still, if they had believed from the evidence that he went to said house with no intention to kill any one, or to inflict serious bodily harm upon any one, but merely to see and talk with his wife, who was at said house, they should have been authorized by the charge to inquire whether the homicide was committed by him without malice, voluntarily and under the immediate influence of sudden passion produced by an adequate cause. We think the evidence fairly raises the issue of manslaughter, and that it was material error to not give the law of that grade of homicide in charge to the jury. (McLaughlin v. The State, 10 Texas Ct. App., 340; Neyland v. The State, 13 Texas Ct. App., 533; Moore v. The State, 15 Texas Ct. App., 1; Hobbs v. The State, 16 Texas Ct. App., 517; Jones v. The State, 17 Texas Ct. App., 602.) The charge was excepted to at the time •of the trial because of this defect.

As to other objections made to the charge, we are unable to perceive their soundness; nor do we think that there was error in refusing the special charges requested by the defendant.

Because of the errors we have discussed, the judgment °is reversed and the cause is remanded.

Reversed and remanded.