Jordan v. State

ON rehearing.

May 17, 1911.

DAVIDSON, Presiding Judge.

At a former day of the term the judgment herein was affirmed. Appellant has filed rather an elaborate motion for rehearing, and ably and strongly presents reasons why the court was in error in affirming the judgment.

We have given the case a careful rehearing in the light of the brief and authorities filed in connection with the motion.

1. Appellant insists that the evidence does not justify the verdict of the jury in assessing a penalty for murder in the second degree. We can not agree with counsel in this matter. We think the evidence does warrant the jury in arriving' at their verdict. Where there is evidence upon which the jury can have its finding for murder in the second degree, where the question of manslaughter is also prominent, this court could not feel justified in reversing the case. It is a question under the statute for the jury to decide whether the homicide was produced by reason of adequate cause or for some other reason. It may sometimes occur, and doubtless will, that there is no other reason assigned than adequate cause for the killing. Even where that is the case, if the mind of the slayer is not rendered incapable of cool reflection, required by law, it would not necessarily be reduced to manslaughter. It might be murder in the first degree. If the party doing the slaying was not actuated by passion, but it was the result of deliberate preparation, as lying in wait to wreak his vengeance, or if the evidence showed premeditation and cool deliberation, the cause relied upon as adequate might be evidence of malice. In addition to what was • said in the original opinion, it may be well enough to state that deceased claimed that he was invited by appellant to go to his house for the purpose of having intercourse with some female member of the family; that he was informed that he could gratify such desires by going to his house. Not only so, but when appellant and deceased met at 'the time of the fatal difficulty, the question came up between them, and deceased then charged appellant to his face that he had invited him to go there for that purpose. If deceased in fact insulted the female relative of appellant by going to his house, this may or may not have been adequate cause for sudden passion on the part of appellant. If appellant had invited him to go there for that purpose, and the deceased had gone, the fact that it would be insulting conduct towards a female relative would not necessarily reduce the homicide to manslaughter on the part of appellant in killing for the reason he had invited him to go. He had induced the deceased to do what was done. This might constitute evidence of malice and preparation on his part, and put deceased in such attitude that he might kill him on account of such insulting conduct. As stated in the original opinion also, appellant had also talked to two witnesses, whose testimony is mentioned, to the effect that he was going to kill deceased Monday morn ing, at which time he was in a good humor and cool. We do not deem it necessary to go further into the facts to indicate the jury were justified in finding appellant guilty of murder in the second degree instead of manslaughter. There is evidence which justifies that conclusion.

2. Appellant contends that the charge on manslaughter is not sufficient, and is misleading, in that it did not sufficiently present the theory of manslaughter, that appellant had a right to kill under that phase of the law upon the first meeting after he was informed of the insulting conduct, and that the court was in error in not definitely stating to the jury that he would have a right to kill upon the first meeting. To this contention we can not accede. The court charged the jury that insulting conduct towards a female relative would constitute adequate cause, and if the mind was angered or enraged to such an extent that it was incapable of cool reflection, although the law requires that the provocation arise at the time of the killing, yet it was the duty of the jury in determining the adequacy of the provocation to consider in connection therewith all the facts and circumstances, and if by reason thereof defendant’s mind at the time of the killing was incapable of cool reflection, they would convict him of no higher offense than manslaughter. Then the court further charged the jury that insulting words or conduct of the party killed towards a female relation of the party guilty of the homicide constitutes adequate cause; and when it is sought to reduce the homicide to the grade of manslaughter for this reason, it must appear that the killing took place immediately upon the happening of the insulting conduct, or the uttering of the insulting words, or so soon thereafter as the party killing may meet with the party killed, after having been informed of such insults.

In addition to all that, the court charged, at the request of appellant, as follows:

“If you find from the testimony in this case that the defendant had been informed that the deceased had made improper proposals to his stepdaughters, and had gone to his house in the night-time for an improper purpose, and he believed said report to he true, and that this produced in the mind of the defendant passion, anger, resentment, rage, and that in such frame of mind he shot and killed the deceased at the first meeting after he had been informed of the acts of the deceased, then you are instructed that the defendant would not be guilty of any higher degree of offense than that of manslaughter, although you may believe that the information given to the defendant as to the acts or words of the deceased were not true.”

The court also charged the jury, at the request of appellant, as follows:

“If you find from the testimony in this case that the defendant was informed that the deceased had been to the defendant’s house in the night-time in his absence, and that the defendant desired to interview the deceased and get an explanation from him of his actions, in going to his house under the circumstances, and that before he went to see the deceased the defendant armed himself, you are instructed that the fact of the defendant arming himself would not, in law, deprive the defendant of the right of defending himself against any unlawful attack, if any, made upon him by the deceased.”

The appellant’s first charge, as given, supplementary to the charge given by the court, presented the very facts themselves to the jury upon which appellant predicated his adequate cause. We are referred to Akin’s case, 56 Texas Crim. Rep., 324, as authority for reversing this case. We do not understand the Akin case to be in point. The charge in this case meets the very question upon which the Akin case was reversed. The first charge given in this case by the court in regard to the general circumstances and combination of facts which might engender passion is practically the same as the charge given in Akin’s case, but the Akin case was reversed because practically the same charge given at request of' appellant in this case was not given to the jury in that case.

3. The court gave charges with reference to adequate cause separately; that is, he first gave a charge with regard to a combination of facts and circumstances, and in a subsequent portion of the charge gave that with reference to insulting conduct. The court saw proper in submitting each ground of adequate cause, to tell the jury in that connection that the adequate cause must exist and the passion must be engendered by it. Usually we find this charge given, not separately, as in this case, and the charge with reference to adequacy and consequent passion, given in connection with the whole charge in regard to manslaughter. We have had occasion to criticise the repetition of charges that had a tendency, or that may have had the effect, to convey to the jury the idea that the court did or did not believe certain facts, and in some instances had occasion to reverse because of the repetition of these charges, but as this ease is presented we do not believe that we would be justified in reversing the judgment for the reasons urged. If this be considered as repetition, it was so given as not to be harmful.

We are of opinion that the motion for rehearing should be overruled, and that it presents nothing of sufficient importance to require us to recede from the affirmance. The motion for rehearing is overruled.

Overruled.