Wadlington v. State

White, Presiding Judge. Two of the State’s witnesses who were present and knew and heard what transpired at the time of the difficulty, one of them being the injured party himself, testified that Contat charged defendant with improper relations with his, Contat’s, wife, and also that defendant was claiming to be the father of her child. Both charges were emphatically denied by defendant, but were vehemently reasserted by Contat, who then took defendant by the collar of his shirt and shook him. Defendant pushed him off, and patted him on the breast and shoulder. Contat told him to keep his hands off, and was still cursing him when defendant shot, his ball hitting him in the arm. All this testimony was properly admitted as part of the res gestee. The cause of the difficulty appears to have been the charges made by Contat against defendant with regard to defendant’s relations to his wife and her child. After this evidence had been elicited, defendant proposed to disprove the [273] charges which Contat had thus made against him, and to show that his relations to the wife and child had been and were entirely innocent and proper. This the court refused to permit him to do, holding the evidence to be too remote and irrelevant. We are of opinion that the importance of this ruling becomes apparent when considered in connection with the charge of the court as given. The court simply charged the law of assault with intent to murder and aggravated assault. A charge was asked by the defendant upon manslaughter as applicable to the facts, which the court refused to give, as shown by the bill of exceptions. Without the evidence above alluded to the charge given was perhaps sufficient; with it, in our opinion, a charge upon manslaughter would have been essentially requisite to its sufficiency. Was the evidence admissible? Did it tend to elucidate and explain the act and conduct of the defendant in the transaction; if so, then it was admissible. Defendant is charged with illicit intimacy with a man’s wife and the further fact that he claims the paternity of her child, by her own husband; yet he is most conscious of his innocence. He is equally as conscious of the woman’s innocence. He knows that the husband has abused and maltreated the wife until she has been compelled to abandon her home and seek protection elsewhere. He finds himself now for the first time confronted with and chargéd by the irate husband as the cause of these troubles, and in connection with the charge is violently seized by the shirt and roughly handled. All these things, taken together, would naturally tend to outrage the feelings and arouse the mind in a man of ordinary temper to anger, rage and sudden resentment, rendering it incapable of cool reflection. It is true that no verbal provocation justifies an assault and battery (Penal Code, art. 492), and true that it is also declared by statute that “insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, or an injury to property, unaccompanied by violence, are not adequate causes ” sufficient to reduce a homicide from murder to manslaughter under our Code. (Penal Code, art. 596.) Any one of these facts alone and of itself will not be sufficient. Our statute provides us with four illustrations of adequate causes. (Penal Code, art. 497.) These four statutory illustrations, however, are not the only causes which will reduce murder to manslaughter; they are simply explanatory and not restrictive. (Brown v. The State, 38 Texas, 482; Johnson v. The State, 43 Texas, 612; West v. The State, 2 Texas [274] Ct. App., 460; Guffee v. The State, 8 Texas Ct. App., 187.) As was said in Williams v. The State, 15 Texas Ct. App., 617: “ Nor is bodily pain absolutely essential to adequate cause in manslaughter. It is true that an assault and battery causing pain and bloodshed is an adequate cause, made so by statute. (Penal Code, art. 597.) But adequate cause is not limited to the illustrations enumerated in the Code. Any condition or circumstance which is capable of creating (and does create) sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection, whether accompanied by bodily pain or not, is adequate cause.” (Penal Code, art. 594; Neyland v. The State, 13 Texas Ct. App., 536.) The adequate cause is not estimated by pain but by sudden passion. (See, also, Hobbs v. The State, 16 Texas Ct. App., 517.) Now, in the case before us, suppose we admit that the insulting words and charges of Contat were alone insufficient,— suppose we admit that his assault upon defendant was so slight as to show no intention to inflict pain or injury, and consequently that by and of itself it was also insufficient; but, on the other hand, suppose we find them, as in this case, not isolated from one another, but united together, does our statute anywhere declare that when the insufficient parts are thus united together they shall not together and as a whole constitute adequate cause? We know of no such declaration. Hr. Wharton says: “At the same time it must be remembered that an assault too slight in itself to be a sufficient provocation may become such by being coupled with insulting words.” (Whart. on Homicide, § 393.) As to whether the two, when coupled together, are sufficient to constitute “ adequate cause,” that is, whether they were sufficient to produce, and did produce, in the mind of defendant such a degree of anger, rage, sudden resentment or terror as to render it incapable of cool reflection, is a question of fact for the jury to determine under proper instructions from the court. ( Williams v. The State, 7 Texas Ct. App., 396.) Appellant’s conscious innocence would tend to magnify the wrong and intensify the insult done him by the charges made against him by Contat. Inasmuch as the prosecution had drawn out the charges and the insults,— and if not controverted they were certainly calculated to prejudice his case,— we are of opinion he should have been allowed to introduce his testimony, both to disprove these charges and to throw light upon his motives and conduct throughout the transaction. It was error, under the peculiar circumstances of this case, as above stated, to refuse him the benefit of this evidence. [275] As presented in the evidence which was adduced, we think, for the reasons already stated, defendant should have had a charge on the law of manslaughter, with instructions that if from the insults and assault coupled together as adequate cause, they believed that defendant committed the act under the immediate influenbe of sudden passion, such as anger, rage, or sudden resentment, sufficient to render his mind incapable of cool reflection, then they could find him guilty of no higher grade of offense than aggravated assault. This would have given him the benefit of aggravated assault in two of its phases: whereas the court’s charge only gave him the benefit of one, viz., aggravated assault committed by means of a deadly weapon. The charge of the court upon this latter phase was admirably and comprehensively expressed as follows: “If the jury find from the testimony that the defendant, at the time and place as alleged, did unlawfully shoot at and shoot the said J. L. Contát, and there is no evidence or insufficient evidence of malice and intent to take the life of said Contat, and if they find that said defendant inflicted serious bodily harm, if the pistol as used or attempted to be used was a deadly weapon, then the jury will find defendant guilty of an aggravated assault,” etc. In connection with a charge upon manslaughter, inasmuch as the evidence showed that after Contat was made to loose his hold of defendant’s shirt collar, some two or three minutes elapsed before defendant shot, the question “of cooling time” would have been proper to have been submitted. ( Winkfield v. The State, 41 Texas, 151; Eanes v. The State, 10 Texas Ct. App., 422.) For the rule is that “ however great the provocation may have been, if there be sufficient time for the passion to subside and for reason to interpose, the homicide will be murder.” . . . But, “ if the jury are of opinion that the wound was given by the prisoner wfiile smarting under a provocation so recent and so strong that the prisoner might be considered as not being at the moment the master of his own understanding, the offense will be manslaughter.” (Whart. on Homicide, §§ 488, 489.) Several other supposed errors are assigned and are ably presented in the brief of appellant’s counsel, but the ones we have discussed are the only ones deemed important and material. Because the court erred in refusing to permit defendant to introduce the excluded evidence above mentioned, and because the court erred in refusing to charge the law of manslaughter as applicable to the facts in the case, the judgment is reversed and the cause remanded for a new trial. Reversed and remanded. [Opinion delivered November 4, 1885.]