
    BRADLEY v. STATE.
    (No. 9341.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1925.)
    1. Homicide <&wkey;309(3) — Refusal to instruct jury upon law of manslaughter held not error.
    In murder prosecution, held, under testimony showing that accused had awakened from sleep in fright and started shooting, killing woman with whom he was sleeping, refusal to instruct jury upon law of manslaughter was not error.
    2. Homicide <&wkey;'304 — Refusal of charge directing acquittal, if jury found accused was asleep when killing was done, held error.
    In murder prosecution, where evidence showed that accused, awakening from sleep in a fright, had started shooting, killing woman with whom he was sleeping, held refusal of charge' directing acquittal, if jury found that accused was asleep when he shot deceased, was error.
    3. Witnesses <&wkey;>283 — Accused may he recalled for further cross-examination after testifying in his own behalf.
    Permitting state’s counsel to recall accused for further cross-examination after having testified as witness in his own behalf was not error. .
    4. Homicide <&wkey;166(9) — Admitting evidence of improper relations of witness with deceased, with whom accused was living in adultery, without showing accused’s knowledge thereof, held error.
    In murder prosecution, admitting evidence showing improper relations of witness with deceased, with whom accused was living in adultery, without showing accused knew of such rélations, held error.
    Appeal from District Court, Burleson County; R. J. Alexander, Judge.
    Isom Bradley was convicted of murder, and be appeals.
    Reversed.
    
      Bowers &, Bowers, of Caldwell, for appellant.
    Sam D. Stinson, State’s Atty., of Green-ville, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of five years.

Appellant, a negro, 27 years of age, was living in adultery , with the deceased, Ada Jenkins. According to his testimony, there existed between him and the deceased the most cordial and affectionate relations. Oúe Lawrence Williams was an enemy, and had made some threats against the appellant. After retiring on the night of the homicide, the deceased and the appellant discussed Williams. Deceased gave the appellant in-formatlom which tended to alarm him, and put him in fear of a secret attach by Williams. During the, conversation and thereafter, while reflecting upon it, appellant became more and more alarmed, and, as he expressed it, he felt “jubious and júbiouser,” and took from a table which was near his bed a pistol, which he put under the pillow upon which his head was lying.

His further statements, descriptive of the tragedy, we quote from his testimony:

“I goes off to sleep. I never waked up any more till I was disturbed by a noise in the house. I went to sleep with that on my mind. The last I remembered was that the door was not fastened. After the noise in the house disturbed me, I was nervous, and I was not reconciled to the noise in the house. I was scared. I just jumped up with my gun and commenced shooting'. I made a couple of shots, about two shots or three. An/I so then, when I found myself and got reconciled •I was standing up in the floor. Then X- turned to the library table at the head of the bed where I slept and lit the lamp. When I lit the lamp I found her laying there dead. She was laying at the foot of the bed next to the partition wall when I lit the lamp; she was laying there. As to knowing whether X killed her or not, well, I was shooting; I couldn’t say I killed her because I didn’t know what I was doing. When I lit the lamp she was there dead. As ■ to my intentionally killing Ada Jenkins, or knowing X did so, I was shooting is all I can say., I was not trying to kill her; no, sir. X would not have killed her if I had known it was her for nothing in the world.”

Upon the testimony quoted, it is believed that the court, committed no error in declining to-instruct the jury upon the law of manslaughter. Manslaughter is a voluntary homicide, committed by one whose mind is rendered incapable of cool reflection by sudden passion aroused by adequate cause. It is conceived that an involuntary homicide, such as1 the appellant’s testimony tends to show, does not come within the purview of the statute defining manslaughter. The testimony- quoted does not convey a clear conception of the exact state of the appellant’s mind; that is to say, whether it was his idea that he was about to be attacked by an enemy and fired under this mistaken belief, or whether his testimony brings him within the category of a somnambulist, of which it has been said:

“As the somnambulist does not enjoy the free and rational exercise of his understandings, and is more or less unconscious -of his outward relations, none of his acts during the paroxysips can rightfully be imputed to him as crimes." Ray’s Medical Jurisprudence, § 508.

These ideas differ in that one presents the theory of a voluntary shooting of the deceased upon the mistaken belief that she was another person, while the other presents the theory that the shooting took place when the appellant was apparently awake, though, in fact, asleep, and that there was no conscious volition to kill the wo-man or any, other person. The theory first mentioned above was embraced in the main charge in the following language:

* * And you should further believe that said defendant so shot and killed the said. Ada Jenkins under the mistaken belief that she, the said Ada Jenkins, was some other person, or person^, who bad entered upon the premis|s occupied by the defendant, for the purp^S of unlawfully assaulting the defendant, or, if the evidence raises in your minds a reasonable doubt thereof, then you should find the defendant not guilty.”

It is clear that -in this charge no note is taken of .the state of mind of the appellant other than that which relates to the subject 'of the mistaken identity of the person killed.As presenting the other theory arising from the appellant’s testimony, he presented, and the court refused, a special charge in the following language:

“I instruct you that, if you believe from the evidence that the defendant shot the deceased while asleep, and not knowing what he was doing, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict, ‘not guilty.’ ”

The idea embraced in the special charge was not included in the main charge. In this state, the same question has not, so far as we are aware, heretofore arisen. It is not altogether novel, however, but has been dealt with in some other jurisdictions.

Touching the subject of somnambulism, it is said:

“ ‘Not only is the power of locomotion enjoyed, as the etymology of the term signifies,, but the voluntary muscles are capable of executing motions of the most delicate kind. Thus, the somnambulist will walk securely on the edge of a precipice, saddle his horse, and ride off at a gallop; walk on stilts -over a swollen torrent; practice airs on a musical instrument; in 'short, he may read, write, run, leap, climb, and swim, as well as, and sometimes even better than, when fully awake.’ Ray’s Med. Jur. § 495; Wharton. & Stille, Taylor, and Brown announce similar views; Wharton & Stille on Med. Jur. § 149 et seq.; Taylor’s Med. Jur., p. 176; Med. Jur. of Insanity, § 328 et seq.
“Under the general head of mental unsoundness connected with sleep, Wharton & Stille group somnolentia, somnambulism, and nightmare. They define somnolentia ‘to be the lapping over of a profound sleep into the domain of apparent wakefulness,’ and say that it produces a state of involuntary intoxication, which for the time destroys moral agency. Med. Jur. § 151. The writings 6f medical and medico-legal authors contain accounts of many well-authenticated eases in which homicides have been committed while the perpetrator was either asleep or just being aroused from sleep, and in commenting on these eases, Brown, in his Medical Jurisprudence of Insanity, uses this language (section 338): ‘Indeed, there are very many cases in which the confused thoughts of awakening consciousness have led to disastrous consequences. And this is to be accounted for by the fact that there is a state 'between sleeping and waking when the thoughts of the dreamer .have as much reality as the facts he is assured of by his senses.’ ” Fain v. Commonwealth, 78 Ky., pages 186-187, 39 Am. Rep. 213.

Somnambulism is recognized as a species •of insanity. From Bouvier’s Daw Diet. (Raw-le’-s 3d Ed.) vol. 3, p. 3091, we take the following quotation;

“The legal consequences of somnambulism ■should be precisely those of insanity, which it so nearly resembles. The party should be exempt from punishment for his criminal acts.”

i In effect, the same announcement is made in Bishop’s New Crim. Law. vol. 1, § 395.

In classifying the forms of insanity, it is said:

“If to this we add somnambulism, which is unconscious cerebration during sleep, we will have a full and complete analysis and classification of this disease called insanity according to the modern scientists and alienists.” Stewart’s Legal Medicine, § 146, p. 373.

In the case of Fain v. Commonwealth, 78 Ky. 183, 39 Am. Rep. 213, the accused was ■convicted of murder, and upon his trial he sought to offer evidence to the effect that when suddenly awakened from his sleep, he fired with no conscious motive or intent to kill the deceased. The ease was reversed for the refusal- to receive this testimony. In the opinion, we find this lánguage:

“If the prisoner, when he shot the deceased, was unconscious, or so nearly so that he did not comprehend his own situation and the circumstances surrounding him, or that he supposed he was being assailed, and that he was merely resisting an attempt to take his life or do him great bodily injury, he should be acquitted — in one case, because he was not legally responsible for any act done while in that condition, and in the other, because he is excusable on the ground of self-defense — for, although it is clear that he was not in danger, and had no reasonable grounds to believe he was, yet if, through derangement of his perceptive faculties, it appeared to him that he was in danger, lie is as free from punishable guilt as if the facts had been as he supposed them to be.”

In the present case, the opinion is entertained that, in refusing the special charge to which reference has been made, an important defensive issue raised by the evidence was withheld from the consideration of the jury.

We find in .the record some twenty-five bills of exception. Many of them are imperfect in so meagerly stating the surrounding facts as to render us unable to appraise their merits. Some of them are wholly in question and answer form or the transcribed notes of the stenographer, and for that reason cannot be considered. Several of them relate to the refusal of special charges. In view of the disposition we are making of the case, we have examined all of the bills. Most of them, relating to the receipt of testimony showing conditions surrounding the homicide, were properly received under the rule stated in general terms in Wharton’s work on Homicide (3d Ed.) ■§ 606, in these words:

“The condition of the body of a deceased person and of things in the vicinity in which" it was found is admissible in evidence in a prosecution for the killing. This is a general statement of a rule universally recognized, which is fortified and particularized in the following sections.”

The appellant having testified as a witness in his own behalf, the court committed no error in permitting state’s counsel to recall him for further cross-examination. See Mendez v. State, 29 Tex. App. 613, 16 S. W. 766; and other cases collated in Branch’s Ann. Tex. P. C. p. 83, § 147, subd. 6.

The witness Sambo Evans testified that on the day on which the deceased was killed he gave her two' squirrels, and -that he saw heir in the woods about a mile or more from her residence in the absence of the appellant, In his testimony, he used language which we understand to mean that .his relations with her were improper and had been for some time. He said that,- while he and the deceased were in the woods, she remarked that there was some one . coming; that he saw the legs of some one but could not identify him. It was shown by other testimony that the appellant was aware of the fact that the deceased received the squirrels from Evans. He claimed that he took no offense; that his relations with the deceased were the most friendly and affectionate. The bill is imperfect. However, in view of another trial, we have to suggest that, unless there be some testimony warranting the inference by the jury of knowledge on the part of the appellant of the improper relations between the deceased or with the particular transaction in question, the testimony to the effect that Evans and the deceased were intimate, and that they were in the woods together, and that some person was seen by them, should be rejected. This testimony of Evans tended to impinge upon the appellant’s testimony negativing any motive for shooting the woman, and, if he was ignorant of the alleged facts which Evans related, his defensive theory could not properly be impaired by the testimony in question.

Whether the fatal shot was unconsciously fired by the appellant or was the result of a mistake of the identity of the deceased were questions of fact for the jury, and it was his right to have the court give adequate instruction thereon. If the jury rejected these theories, the evidence is not wanting upon which to predicate a verdict of murder. It was proper for the court to submit that issue. Because of'his failure, however, to give the special charge requested, to which we have adverted, or to embrace its substance in the general charge, the learned trial judge fell into error which was, under the facts of the case, prejudicial to the appellant, and which warrants this court in ordering a reversal of the judgment, which is accordingly done. 
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