
    McKASKLE v. STATE.
    (No. 8301.)
    (Court of Criminal Appeals of Texas.
    March 12, 1924.)
    1. Homicide <@=^43 — Killing under influence of sudden “passion” from ‘'adequate cause” is “manslaughter.”
    One killing another under the immediate influence of sudden passion arising from an adequate cause is guilty only of “manslaughter”; the “passion” meant being anger, terror, etc., rendering the slayer’s mind incapable of cool reflection, and for which there must ordinarily be “adequate cause” occurring at the time of the homicide, that is, circumstances which would commonly produce the degree of anger, etc., in the mind of one of ordinary temper as would render it incapable of cool reflection.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Scries, Adev quate Cause; Manslaughter; Passion.]
    2. Homicide <§^>300(8), 309(4) — Refusal to submit manslaughter charge as well as self-defense held error.
    In prosecution for murder, where defendant’s testimony. showed deceased’s character, his increasing evil treatment of defendant, defendant’s fear, disparity in age, and strength, and abuse culminating in serious threats to take defendant’s life or do him bodily harm, refusal to submit the law of manslaughter as well as of self-defense held error.
    3. Criminal law <@=»804(9) — Refusal to permit defendant’s counsel to examine charge before reading it to jury held reversible error.
    In prosecution for murder, where, after submission of the court’s charge to defendant’s counsel, the trial judge changed it and thereafter refused to submit it for further exceptions unless defendant’s counsel would agree' to draw a complete charge either on self-defense or threats, such refusal of the right to examine, the charge as amended was reversible error in view of Code Or. Proc. 1911. art. 735, and Yernon’s Ann. Code Cr. Proc. 1916, arl. 737a.
    <gs»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Sam B. McKaskle was convicted of murder, and be appeals.
    Reversed and remanded.
    E. T. Branch and Mathis, Heidingsfclder, Teague & Kahn, all of Houston, for appellant.
    J. Dixie Smith, Cr. Dist. Atty., and Earl R. Adams, Jr., and W. M. Johnson, Asst. .Cr. Dist. Attys., all'of Houston, and Tom Gar-rard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.,
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Harris county of murder, and his punishment fixed at 25 years in the penitentiary.

We discuss but two questions. Tbe billing was at nigbt near one of tbe most public street corners in tbe city of Houston. Appellant’s wife was employed in tbe Union National Bank building and got off work about 9 p.' m. It was bis custom to come down for her a little before that time. On this nigbt his car was parked on Congress street near the rear of tbe bank building and be was sitting in tbe car, having also in there a shotgun loaded with buckshot. According to appellant’s theory, deceased appeared on tbe sidewalk and accosted him and made threatening gestures, because of which, and previous matters between them, appellant said he was under the belief that bis life was about to be taken and he shot. State witnesses locate deceased at some distance from appellant’s car when the first two shots were fired, and one says that deceased was standing with bis arms apparently folded facing away from said car at a distance of about 100 feet when the first shot was fired. Wounds on -the body of deceased indicated close proximity of the parties. No motive is indicated by the state’s testimony. For tbe defense it was shown that appellant was a small man weighing 135 pounds, 57 years old, and not in the habit of having fights, while deceased was a man weighing 200 pounds, about 35 years old, and was in fact and reputation a bad man, had killed one man in Galveston, shot another in Brookshire, and had fought vigorously and successfully on many other occasions. It was shown that he had become enraged at appellant and had made many and serious threats against him,; the last communicated threat having been made the day before the homicide to witness Harrington, who stated that he met deceased in the vicinity of the Union ‘National Bank building, and the latter asked him if he had seen Sam (appellant), and said:

“Well, I have been looking for him and trying to find him. I left word for him to meet me on several occasions, and he hasn’t done it, and when I do see the son of a bitch I am going to fix him.”

Witness testified that he told appellant that night what deceased had said. Another witness testified that she overheard deceased say to appellant over a telephone:

“You God damned son of a bitch! If you don’t pay me, I am going to kill you the first time I see you on the street, any place, anywhere, any time, the first time I see you.”

A number of witnesses swore that deceased’s reputation was that of a dangerous and violent man and one who would carry out a threat seriously made. Appellant and his wife both said that a short time before the homicide they saw deceased coming away from their home in a car, and when they got inside they found a note addressed to appellant of a threatening character. Appellant also testified to a long-continued course of conduct on the part of deceased, whose character he stated was known to him, by means of which he was terrorized, compelled to pay deceased money that he did not owe him, and to let him have his car till it was almost ruined, and he could stand it no longer. That deceased was constantly cursing and abusing him, until he had to ask him to move away from his house where deceased had been boarding, and that on that occasion and many others deceased threatened to kilí him, etc., etc. 1-Ie said that knowing the reputation of deceased and fearing an attack from him, on the day of the homicide he went to a pawnshop and redeemed his shotgun and bought some buckshot shells with which to protect himself if occasion demanded. Appellant said that deceased knew his custom of meeting his wife at night at the bank building, and that in order to prevent discovery and annoyance at the hands of deceased he changed his parking place; that on the night in question he was parked near the rear of the bank building and was sitting in his car waiting for his wife when he saw deceased coming straight toward him and near to his ear, and the deceased then said, “You son of a bitch! you are biding from me,” and made movements with his hands and body that caused appellant to think that deceased was going to attack him and kill him; and that he raised his shotgun and began firing. He said when he fired deceased wheeled and ran, and that he continued firing until deceased fell. He said that he was afraid of deceased, that he was excited at the time and shot because of the threats formerly made by deceased, and. that the latter was coming at him and he thought was going to kill him.

He who kills another under the immediate influence of sudden passion arising from an adequate cause is guilty only of manslaughter. The “passion” meant is anger, rage, terror, etc., rendering the mind of the slayer incapable of cool reflection, for which passion there must ordinarily be adequate cause occurring at tbe time of the homicide, though such cause then arising may not be the sole cause. To be adequate cause to arouse such passion, there must appear circumstances which would commonly produce that degree of anger, rage, etc., in the mind of a person of ordinary temper as would render it incapable of cool reflection. What these circumstances may be must necessarily vary with each case, but when they appear in evidence, their sufficiency becomes a question for the jury, and when tbe court is in doubt as to the existence of such circumstances, that doubt should be resolved in favor of the giving of a charge on manslaughter.

What caused this killing? The state attempts no answer, but relies on the facts surrounding the shooting. The defense puts before the jury the character of the deceased, his increasing evil treatment of appellant, tbe fear of the latter for deceased, the disparity in their age and physical strength, the abuse of appellant by deceased culminating in serious threats to take his life or do him bodily harm, the finding of the note on the table, the arming of appellant to protect himself, his apparent hiding by changing the parking place of his car, etc. It was shown that on the night of the homicide appellant proceeded to where his duty to his wife ordinarily called him, and that he was sitting in his car apparently waiting for her when deceased came along and the shooting occurred.

Appellant gave his version of the affair, asserting fear, excitement, and that he shot in self-defense, The learned trial judge seems to have concluded that, appellant having claimed that he killed in self-defense, this was all that need be submitted as the defensive theory. In Steen v. State, 88 Tex. Cr. R. 256, 225 S. W. 529, we said, in substance, that the right of the accused to have the issue of manslaughter submitted will not be precluded by the fact that he attributes the killing to some other motive than passion, and authorities are there collated. The record in the case before us is strongly suggestive of fear of deceased by appellant, page after page of the statement of facts reflecting his endurance of abuse and threats at the hands of deceased, his borrowing money to pay to deceased upon demands which he avers he did not owe, and other matters too numerous to mention but in line with the theory that appellant was afraid of' deceased and avoided a difficulty with him as long ,as he could. That deceased was a violent and dangerous man is not disputed in the record. It often happens that such a man, when thrown in contact ,with one weaker and more timid, can easily go from abuse to threats and then to violence toward the person whose fear of him is apparent. Appellant had been told that deceased was looking for him and had said that when he found him he was going to fix him. That deceased was in the vicinity of said bank the night when the homicide took place is true. Who is to say what was the condition of the mind of appellant when he saw deceased approaching? The evidence as to the location and condition of the wounds on the body of deceased negative the idea that he was 100 feet from appellant, as above indicated, when fired upon. Three large wounds in the head and body would not seem possible of infliction by a shotgun unless the parties were near each other. Even if the jury should conclude that deceased did not make a threatening demonstration before appellant shot, can the trial court know, or as a matter of law decide, that the jury would not conclude that deceased said to appellant that he was trying to hide, nor could the court know as a matter of law that appellant did not believe that deceased was going to execute the threats made by him, and that this, added to other matters, so aroused appellant’s fear or rage as to render him incapable of cool reflection and to cause him to shoot and keep on shooting. The jury might or might not find that the shooting was under the immediate influence of sudden passion, but in our opinion the decision of that question was for them and not for the trial court. As was said in Pickens v. State, 86 Tex. Cr. R. 663, 218 S. W. 758:

“The jury may have accepted the appellant’s testimony that the meeting was a sudden and unexpected one, and have believed that this, in connection with the previous relations of the parties and the other facts mentioned above, produced anger, rage, or terror, such as rendered the appellant’s mind incapable of cool reflection, and that in consequence of the passion thus aroused he magnified or misinterpreted the conduct of the deceased, and acted in a manner so precipitate as not to excuse him entirely, but in a manner in which, if they had been so privileged, the jury might have reduced the offense to manslaughter. See Rutherford v. State, 15 Tex. App. 247; Bonner v. State, 29 Tex. App. 230, 15 S. W. 821; Green v. State, 58 Tex. Cr. R. 428, 126 S. W. 860; Lee v. State, 54 Tex. Cr. R. 385, 113 S. W. 301; Burton v. State, 77 Tex. Cr. R. 314, 178 S. W. 334. This view is emphasized by the fact that there was proof on the trial that the deceased at the time of the homicide was not armed. It would not be unnatural or unreasonable for the jury to reach the conclusion that .appellant was mistaken in his assumption that the deceased was about to draw a weapon, if they did not believe that he shot from ambush. They might have thought he shot unnecessarily and too quick, but under excitement and passion which was adequate to and did render his mind incapable of cool reflection. We believe, under the rules prevailing, that the court was not warranted in refusing the appellant’s request to instruct the jury on the law of manslaughter.”

We think the learned trial judge in error in refusing to submit the law of manslaughter.

Another matter. When the state and defendant rested their ease, the learned trial judge prepared his charge and submitted it to counsel for the appellant, who thereupon presented a number of exceptions to same and also special charges which they asked to be given. It appears from a bill of exceptions in the record that, after considering said exceptions and special charges, the learned trial judge changed his charge ,and thereafter refused to submit it to counsel for the appellant for further exception, unless they .themselves would agree to draw a complete charge either on self-defense or threats. The requests of appellant’s counsel for the privilege of examination of the charge as amended or changed were refused finally by the court. That this was clearly erroneous under the terms of article 737a, O. O. P., is beyond question. In the case of Czernick v. State, 85 Tex. Cr. R. 169, 211 S. W. 223,. we held a similar action to be reversible error. In the light of the able brief filed by state’s attorneys in this case, we have again reviewed the matter. It is contended by' the state that when the trial court refuses to submit his charge originally as provided under article 735, O. O. P., or after same has been changed as under article 737a, O. O. P., to the attorneys for the appellant, they can set up in the motion for new trial all matters of legitimate exception to the charge, and that the trial court primarily, and this court on appeal, could examine those exceptions, and, if well taken,-grant a new trial or reverse the case. The Legislature of this state in 1913 so amended the law as to require that the trial court submit its charge to the attorneys for the appellant before same is read to the jury, and makes it the duty of such attorneys to then take all exceptions to the charge. Vernon’s Ann. Oode Or. Proc. 1916, art. 737a, specifically provides that after these exceptions have been considered, the trial court may correct or change his charge, and that he must then submit it again to the attorneys for further exception if they desire.

The course indicated in the argument and brief of the state in this case, viz. that exceptions to the charge might be presented in the motion for new trial, was the former practice before the act of 1913 above referred to. There are many objections to such practice which we do not take time to set out. For us to now hold that the trial judges might refuse to submit their charges to the attorneys originally, as is required by article 735, O. O. P., or after change, as is required by article 737a, <G. O. P., would practically be to. repeal the act of 1913, and could easily give rise to the universal practice on the part of trial judges of declining to submit their charges to the attorneys and thus require the latter to make and present all their objections in their motions for new trial. We do not think this to be the proper practice, nor the intent of the latter part of article 737a, O. O. P., and we adhere to our ruling in the Czerniek Case, above mentioned. The record in this case shows repeated requests on the part of appellant’s counsel that they be permitted to examine the charge as amended and the refusal of such requests by the learned trial judge. This we think reversible error.

" For the reasons mentioned, the judgment of the trial court will be reversed, and the cause remanded.  