
    LOVETT v. STATE.
    (No. 5484.)
    (Court of Criminal Appeals of Texas.
    June 23, 1920.)
    J. Homicide <&wkey;l8l— Matters unknown to defendant inadmissible on question of passion and adequate cause.
    Where daughter of defendant in homicide case informed him that deceased had outraged her, and did not tell him any of the attendant circumstances, it was error to permit the state to go into all the incidental matters and environments that occurred between the daughter and the deceased, as matters unknown to defendant could not affect him or weigh upon his mind, viewed from the standpoint of adequate cause and sudden passion.
    2. Witnesses &wkey;> 188(1) — Evidence of marital troubles of defendant held inadmissible.
    In a prosecution for homicide, defendant having killed deceased after his daughter informed him that deceased had outraged her, it was error for the state to show on cross-examination that defendant’s wife was continually nagging at him, and that she upbraided him for Ms real or supposed intimacy with other women; communications and family turmoils of such sort between husband and wife not being the subject of investigation, unless brought out by defendant.
    3. Criminal law &wkey;>ll70i/2(6) — Examination of defendant pursued against court’s ruling by state, prejudicial error.
    There was reversible error, where the state, in a homicide case, required defendant to state that his wife, in their marital relation at home, was continually nagging at Mm, and that she upbraided him for his real or supposed intimacy with other women, although the answers were given and the examination pursued against the court’s ruling on defendant’s objection.
    4. Homicide <@=»260 — Error to permit jurors to visit scene of homicide.
    In a prosecution for homicide, it was error to permit jurors to visit the scene of the homicide and view the ground, its location and environments, where none of them were placed upon the stand to disclose what they ascertained. l )
    5.Homicide <&wkey;300(9)— Charge on abandonment of difficulty by deceased not supported by evidence.
    In a prosecution for homicide, where defendant fired three shots as rapidly as they could be fired from a pistol, there was' no question of abandonment of the difficulty by the deceased simply because deceased was in the act of turmng, which placed his side to defendant, when the last shot was fired; hence it was error to limit defendant’s right of self-defense by charging on the subject of abandonment of the difficulty.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    J. P. Lovett was convicted of manslaughter, and appeals.
    Reversed and remanded.
    Woods, Barkley & King, of Houston, and V. E. Middlebrook, S. M. Adams, and O. C. Watson, all of Nacogdoches, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was given five years in the penitentiary under a conviction for manslaughter.

Deceased was a tenant of appellant. On the morning preceding the killing in the evening, they had a personal collision, in which appellant was badly beaten. This occurred at the depot in the town of Nacog-doches. Appellant lived in the outer edge of the town. He went from the depot to his residence, and later during the day returned to the city, having his pistol with him. While at home his daughter informed him that deceased had outraged and had intercourse with her. After returning to town he shot and killed the deceased. The jury acquitted of murder, and convicted of manslaughter.

The appellant moved to quash the special venire for various reasons. He files a very elaborate and remarkably able argument in support of his motion. This question was decided recently in Elbert Taylor v. State, 221 S. W. 611, adversely to his contention.

There are exceptions to the ruling of the court overruling causes for challenge to jurors as impaneled. It is unnecessary to discuss the ruling of the court, inasmuch as the case will be reversed upon other questions, and the question arising with reference to jurors may not occur upon another trial.

Another bill shows that Mrs. Franklin, daughter of appellant, just before-her father shot deceased, informed him that the deceased had outraged and had intercourse with her. This seems to have been the extent of the information she conveyed. The attendant circumstances were not mentioned by her, and of such circumstances, so far as this record goes, he was ignorant. The state undertook to go into all incidental matters and environments that occurred between Mrs. Franklin and the deceased. Appellant urged objections. We are of opinion that the state ought not to have been permitted to go that far under the circumstances of this case. Matters unknown to defendant could not affect him, nor weigh upon his mind, viewed from the standpoint of adequate cause and sudden passion. The things which are known and which enter into the adequate cause which produces passion are proper subjects of inquiry, whether they tend to enhance passion or minimize it. It is the condition of the defendant’s mind at the time he acts, and the causes which produce that condition of mind, that enable the jury to view it from the defendant’s standpoint. It is from this viewpoint he acts.

We are of opinion that under Young v. State, 59 Tex. Cr. R. 139, 127 S. W. 1058, appellant’s contention should have been sustained. The rule seems to be well settled that he could not be heard to urge insulting conduct as a basis'for sudden passion and adequate cause, of such were not known to him. They could not enter into his act or acts in connection with the homicide. The ease should be viewed in its bearing from the standpoint of the defendant, and this includes adequate cause and sudden passion, where the issue is manslaughter. '-Unknown causes could not affect his mind for or against him, for the reason that he was unaware of tlieir existence. It may be true, however, that if these matters be shown by the evidence to have been manufactured, and appellant was aware of the fact that they were fabrications, he could not use such conduct to relieve him of murder and reduce to manslaughter. But if he was informed of it, and believed the statement, he would be entitled to defend, as against murder, on the charge of manslaughter, and as he believed the facts to be at the time of such action. The facts may have been false; but if he was unaware of their falsity, but believed them, and, so believing, acted, it would be the same to him as if they were true.

By another bill it is shown, while dedendant was upon cross-examination, he was required to state, over many objections, that his wife in their marital relation at home was continually “nagging” at him, and that she upbraided him for his real or supposed intimacy with another woman and other-women. This should not have been permitted. Communications and family turmoils of this sort between husband and wife are' not the subject of investigation, unless brought out by the defendant, and especially so in this case, because these matters could not have entered into the killing of deceased. Appellant may have.been derelict in his duty to his wife, and may have been intimate with other women, but that could not affect, or be used to affect, this case against him. The court sustained the objections, yet the answers were given and the examination pursued against the court’s ruling. This was such error, even from that viewpoint, as constitutes reversible error. Bullington v. State, 80 Tex. Cr. R. 309, 190 S. W. 154; Dodd v. State, 82 Tex. Cr. R. 139, 198 S. W. 783; Bullington v. State, 78 Tex. Cr. R. 187, 180 S. W. 679; Vick v. State, 71 Tex. Cr. R. 50, 159 S. W. 50; Faulkner v. State, 80 Tex. Cr. R. 346, 189 S. W. 1077.

It is shown on the motion for new trial that the jury, pending the trial, were permitted to visit the scene of the homicide and view the ground, its location, and environments. None of the jurors were placed upon the stand to disclose what they ascertained, but whatever they did ascertain from these visits was locked, in their own breasts. It seems to be well settled that this character of conduct is not legally justifiable. See Smith v. State, 42 Tex. 444; Bouldin v. State, 8 Tex. App. 335; Riggins v. State, 42 Tex. Cr. R. 474, 60 S. W. 877; People v. Bush, 68 Cal. 634, 10 Pac. 169.

There is a contention that the court’s charge on self-defense placed a limitation under the facts not authorized by law. The contention is based upon the idea that the court limited the right of self-defense by charging upon an abandonment of the difficulty by deceased. Upon another trial the charge should be so guarded as not to convey this idea to the jury. The doctrine of abandonment of the difficulty was not involved in the facts. There were three shots fired as rapidly as they could be fired from a pistol. The contention of the state was that, as the last shot was fired, deceased was in the act, of turning, which placed his side to appellant when the last shot was fired. These facts and circumstances are too close together, too nearly connected by time, circumstances, and rapidity, to include the idea of abandonment. So upon another trial the court will frame his charge so as not to impress the jury with the idea of abandonment of the difficulty by deceased.

Other questions urged should not arise upon another trial. The judgment will be reversed, and the cause remanded. 
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