
    MARSHBANKS v. STATE.
    (No. 4337.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1917.
    Rehearing Denied Feb. 28, 1917.)
    1. Homicide <®=j39 — Manslaughter — Ade- ' quate Cause.
    To constitute manslaughter under Pen. Code 1911, arts. 1128, 1137, there must be adequate cause producing such passion as to render mind incapable of cool reflection.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 59-61.]
    2. Homicide <S==>309(5) — Instructions—Manslaughter.
    Where question raised by evidence is that of either murder or perfect self-defense, it is not error to fail to instruct on subject of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 654.]
    3. Homicide <@^>216 — Dying Declaration— Proper1 Predicate.
    In prosecution for murder, held, that proper predicate to introduction of dying declarations that decedent was then sane, conscious of approaching death, and without hope of recovery was shown, and hence that court could have so held without submitting question to jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 457.]
    
      4. Homicide ©=^218 — Dying Declaration — Practice.
    Practice of submitting' to jury, Question of whether proper predicate was laid for introduction of dying declaration, after proper instructions as to requisites, and that these must be proven beyond reasonable doubt, held, proper.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. §§ 458, 459.]
    Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.
    A. Marshbanks was convicted of murder, and appeals.
    Affirmed.
    L. P. Bonner and John A. Storey, both of Vernon, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and his punishment assessed at ten years in the penitentiary.

We have carefully read and studied the whole of the testimony. We see no necessity of now reciting it. The testimony by the state, and as a whole, clearly raised the issue of murder, which the court submitted and the jury found him guilty of. His self-defense was his defense. His testimony raised that issue, which was fully submitted by the court to the jury in a correct charge. His testimony, if believed, would probably have made self-defense. However, that of the state disproved that the killing by appellant was in self-defense.

Appellant complains that the court erred in not submitting manslaughter. We have carefully considered all the testimony with reference to this issue, and have concluded that the testimony did not raise manslaughter, and that therefore the court did not err in not submitting that question.

Our statutes on the subject of manslaughter are clearly and distinctly to the effect that, in order to constitute manslaughter, there must be adequate cause, and that that cause must have produced such degree of passion as to render the mind incapable of cool reflection in order to reduce an unlawful killing from murder to manslaughter. Our decisions are to' the same effect.

In Davis v. State, 70 Tex. Cr. R. 37, 155 S. W. 546, this court, through Judge Davidson, said:

“It may be laid down as an uneontroverted proposition that two things are requisite to constitute manslaughter: First, adequate cause; second, existing passion. If these coexist, the homicide is manslaughter. If they do not combine or coexist, it may be murder in one of the degrees.”

This court, through Presiding Judge White, in McKinney v. State, 8 Tex. App. 626, said:

“A killing upon such sudden passion as is mentioned may be murder in the second degree, even though the passion was anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection. To make such .killing manslaughter, there must actually have existed not only such state or emotion of the mind, but the adequate cause which produced them must also exist. Penal Code, art. 1137. Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, may be sufficient to cause the emotions of the mind known as anger, rage, sudden resentment, or terror to the extent even of rendering it incapable of cool reflection, and yet a killing under such circumstances would not be manslaughter. Why? Because such insulting words or gestures, or such assault and battery, are not adequate causes (Penal Code, art. 1131), and manslaughter cannot be predicated upon any voluntary homicide upon sudden passion not arising from an adequate cause (Penal Code, art. 1128).”

See, also, Wilson v. State, 71 Tex. Cr. R. 403, 160 S. W. 83; Redman v. State, 67 Tex. Cr. R. 374, 149 S. W. 670; Kelly v. State, 68 Tex. Cr. R. 317, 151 S. W. 304; Clore v. State, 26 Tex. App. 624, 10 S. W. 242; Hill v. State, 11 Tex. App. 456; Neyland v. State, 13 Tex. App. 536; Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836; Ex parte Jones, 31 Tex. Cr. R. 422, 20 S. W. 983. A great many other decisions to the same effect could be collated, but we deem it unnecessary.

A careful study of the testimony has convinced us that there was no adequate cause in this case, even if the testimony would justify a conclusion of any sudden passion, which is doubtful, in order to raise the issue of manslaughter and require the court to submit such an issue.

In a great many decisions this court has uniformly held that, if the case is either murder or perfect self-defense, it is not error to fail to charge on manslaughter. 2 Branch’s Ann. P. C. § 2014, where he collates a large number of decisions. We think the testimony in this case presented those two issues alone — murder on the state’s side, and perfect self-defense for the appellant according to his testimony alone.

Appellant has two bills which show that he objected to the testimony of two witnesses wherein they testified to dying declarations of the deceased. His objections along this score were that no sufficient predicate had been laid to make such declarations dying declarations, that it was not shown that he was sane, conscious of approaching death, and had no hope of recovery, and that the declarations were in reply to questions propounded to him. These were his objections, not verified by the court as facts. Upon a consideration of the testimony, we think the proper predicate was laid, and that the court could, without submitting the question to the jury, properly have so held, but it seems the court, instead of deciding the question himself, submitted it to the jury, and in effect instructed them of all the requisites that the state had to prove to make the testimony admissible as dying declarations, and that they could not consider the said proposed testimony along that line unless the jury believed beyond a reasonable doubt all of the said requisites had been shown by the testimony. This practice has been approved by this court. 2 Branch’s Ann. P. C. § 1870; Taylor v. State, 38 Tex. Cr. R. 567, 43 S. W. 1019; Brown v. State, 54 Tex. Cr. R. 129, 112 S. W. 80; Jackson v. State, 55 Tex. Cr. R. 84, 115 S. W. 262, 131 Am. St. Rep. 792; Hunter v. State, 59 Tex. Cr. R. 454, 129 S. W. 125; Ward v. State, 70 Tex. Cr. R. 393, 159 S. W. 277.

The court correctly submitted every issue raised in a proper and apt charge. There is no necessity for further discussion of any of appellant’s claimed errors.

The judgment will be affirmed.

MORROW, J., absent. 
      igsaFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.
     
      <§z=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     