
    BURTON v. STATE.
    (No. 3532.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.
    State’s Rehearing Denied June 2, 1915.)
    1. Homicide <§=295 — Instructions—Degree oh Ohfense — Adequate Cause — “Immediate Influence oh Sudden Passion.”
    On a trial for homicide, the court charged that by the expression “under the immediate influence of sudden passion” was meant that the provocation must arise at the time of the commission of the offense, and that the passion was not the result of former provocation, that the act must be directly caused by the passion arising out of the provocation, and that it was not enough that the mind was merely agitated by passion arising from such other provocation. Held that, though this was correct so far as it went, where manslaughter was in the case by reason of antecedent circumstances also operating on accused’s mind, the court should have further charged that in determining whether tbe provocation at the time of the killing was adequate cause to produce a state of mind incapable of cool reflection the jury should consider all the facts and circumstances in evidence, and that, if they found that the provocation occurring at the time, viewed in the light of the antecedent circumstances, was such as to produce, and in fact did produce, such a state of mind, the killing would be manslaughter.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. §§ 606-609; Dee. Dig. <§=295.
    For other definitions, see Words and Phrases, Second Series, Immediate Influence.)
    2. Criminal Law <§=814 —Instructions,— Applicability to Case.
    The failure of a charge on manslaughter to properly submit the issue of adequate cause is not error if no such issue is in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839,1860,1365, 18S3, 1890, 1924, 1979-1985, 1987; Dec. Dig. <§=814.]
    3. Homicide <§=42 — Adequate Cause — Statutory Provisions.
    The circumstances and conditions which constitute adequate cause to reduce a homicide to manslaughter are not restricted to those named in the statute.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 65, 66; Dec. Dig. <§=42.)
    4. Homicide <§=271 — Questions hor Jury-Adequate Cause.
    If there is evidence which supports the theory of adequate cause, the court may not judge of its probable truth, but should leave it to the jury under proper instructions.
    [Ed. Note. — For other eases, see ' Homicide, Cent. Dig. § 565; Dec. Dig. <§=271.]
    5. Homicide <§=271 — Instructions — Manslaughter.
    On the trial of a tenant for killing his landlord, there was evidence for accused that the landlord was trying to put him off of the place in the middle of the year, with considerably less property than he was entitled to, that when the landlord offered to let him take such property he had his hand on his pistol, and when accused declined the offer said, “You will take this;” that accused became alarmed and' went to a blacksmith shop some distance away; that, 'though this was not the usual road of travel, the landlord drove down by the blacksmith shop, with the lines in his left hand, and his right hand in the pocket where accused had seen the pistol; that accused grabbed his gun and ordered the landlord to drop the pistol; but that, instead of dropping it, he looked as if he was trying to get it out of his pocket. The state’s evidence tended to show that the landlord was using both hands in driving the team, and did not attempt to get his pistol until accused grabbed his gun and ordered Mm to drop the pistol. Seld, that this made a question whether the antecedent circumstances, in connection with the landlord’s conduct at the time of the killing, engendered in accused’s mind such a degree of anger, rage, or resentment as rendered him incapable of cool reflection, and the failure to properly submit this issue was error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 565; Dec. Dig. <§=»271.]
    6. Homicide <@=»16A-Evidencb — Admissibility.
    Evidence as to the landlord’s weight and height was material to no issue in the case, and should not have been admitted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § SIS; Dec. Dig. <3=>104.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Roberts County; P. P. Greever, Judge.
    J. N. Burton was convicted of murder, and he appeals.
    Reversed and remanded.
    J. P. Cunningham, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

The killing took place in Lipscomb county on the 20th of July last. The venue was changed to Roberts county, and when tried appellant was adjudged guilty of murder, and his punishment was assessed at seven years’ confinement in the state penitentiary.

There is but one serious question in the case: Does the evidence raise the issue of manslaughter? The trial court seemed to think so, and submitted that issue to the jury, but, if the evidence raises the issue, the charge, as given, was not applicable to the facts in the case. He instructed the jury:

“By the expression ‘under the immediate influence of sudden passion’ is meant: (1) That the provocation must arise at the time of the commission of the offense, and that the passion is not the result of former provocation; (2) the act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by passion arising from some other provocation.”

This defines adequate cause as it is defined in the statute, and, so far as it went, it is a correct exposition of the law. But, if there is manslaughter in this case, it is by reason of the antecedent circumstances operating on the mind of defendant in connection with what took place at the time of the killing, and the court, while instructing that the provocation must arise at the time of the killing, should also have instructed that, in passing on whether the provocation that did occur at the time of the killing would be adequate cause to produce a state of anger, rage, sudden resentment, or terror rendering the mind incapable of cool reflection, they should take into consideration all the facts and circumstances in evidence, and, if they found that the provocation occurring at the time, viewed in the light of the antecedent circumstances, was such as to produce, and in fact did produce, such a state of mind, the killing would be of no higher grade of offense than manslaughter. The state’s evidence supports a finding that the killing was of the grade of murder, and, unless the evidence in the case raises the issue of manslaughter, the judgment should be affirmed, for an error in the charge on manslaughter in not properly submitting the issue of adequate cause would not present error, if, in fact, no such issue is in the case. Eggleston v. State, 59 Tex. Cr. R. 542, 128 S. W. 1105. It is the general rule that the circumstances and conditions which constitute adequate cause are not restricted to those named in the statute; other causes may exist, and, if there is evidence which supports the theory of adequate cause, the court is not to judge of its probable truth, but should leave 'it to the jury under proper instructions. Wadlington v. State, 19 Tex. App. 273; Childers v. State, 33 Tex. Cr. R. 512, 27 S. W. 133; Rice v. State, 51 Tex. Cr. R. 285, 103 S. W. 1156; Sterling v. State, 15 Tex. App. 257; West v. State, 2 Tex. App. 460; Johnson v. State, 43 Tex. 615. Of course, if the evidence only raises the issues of murder and perfect self-defense, no charge on manslaughter is required. An act, standing alone, may not be sufficient, but may be ample when preceded by an aggravating course of conduct. Johnson v. State, 22 Tex. App. 226, 2 S. W. 609; Lienpo v. State, 28 Tex. App. 179, 12 S. W. 588; Baltrip v. State, 30 Tex. App. 548, 17 S. W. 1106; Adams v. State, 42 Tex. Cr. R. 366, 60 S. W. 47.

With these well-established rules of law in mind, do the facts and circumstances in the case raise the issue of manslaughter with that force and cogency as to require a correct charge applicable to the facts in evidence to be given?

Appellant was the tenant of W. H. Parker, the deceased, and had been his tenant for some four years, but this summer, over some disagreement, not made clear by the record, deceased became desirous of severing that relation. Appellant was cropping on shares. In addition to the usual one-half of the crop raised, he was to attend to deceased’s stock, and was to receive as compensation therefor one-half the increase of the stock. Appellant says that during the years he had been on deceased’s farm and ranch, as increase there were 17 head of horses and colts, and 47 head of cows and calves, of which he would be entitled to one-half. Deceased’s son, Yernon Parker, admits that appellant had this trade with his father, but his understanding was that his father had paid appellant for his interest in the horses. Appellant says he had an interest in the plow, tools, and harness, and the wagon was Ms own. Appellant says that in 1914 there was made on the place 3,500 bushels of wheat, 980 bushels of barley and oats, and 160 acres planted in kaffir corn and maize, one-half of all of which he was entitled to. It further appears by the record that appellant was indebted to the merchants with whom he traded about $800, for wMeh sum Mr. Parker, the deceased, was surety. It does not appear that appellant owed any other debts except to his farm help. On Tuesday of the week before the homicide appellant sent two loads of wheat to market and had the proceeds placed to his credit at the bank. Deceased, learning of this, had the money changed to his credit. On Friday before the homicide appellant started two more loads of wheat to the market, and one of the drivers of the wagons, Williams, says :

That night deceased came to where they were camping and asked what they had done with the other wheat, and when he told him he placed the money to Mr. Burton’s credit “he said, ‘What are you going to do with this?’ I said, T am going to do the same thing.’ He said, ‘No; you cannot do that.’ I said, ‘Why?’ and he said, ‘Because I am not going to let you do it.’ That kind of got me to studying, and he said he would stand between me and Mr. Burton. I said, ‘Mr. Burton will charge me up with that wheat;’ and he agreed to stand between us, and I did that. That was not all of the conversation. He told me that he was going up there to the ranch on Monday, and he was going up there and make Burton move off. He said, ‘Burton can take three horses, one set of harness, one wagon, and what traps he had and throw them in the wagon and move.’ He did not tell me to tell Burton that. I did not say anything to him in particular. I told him I did not think he could scare Mr. Burton. I did not think he is that kind of a man. He did not exactly say how he was going to move him off. He said he would not take his six-shooter with him when he went up there, fie said he would leave that at home. He said, ‘If I take it up there, I am liable to kill him.’ ”

Mr. Ammerman, the other driver, says:

“The conversation came uip about the wheat check, about who was to get the checks, money for the wheat. We told him how it was to be. My cousin was with me. He hauled a load before that. He asked him what he done with it. He told him that he deposited the money to Mr. Burton. Mr. Williams is my cousin. He asked him what he was going to do with that. We told him the same as we did with tire other. He objected, and said he would not stand for that, for us to sell the wheat that way. We told him we would have to sell it that way. He said he wouldn’t let us sell it that way. He went on and said about what he was going to do. He said he was going to Higgins when he got to Glazier and get some papers made ou|t to get possession of the place. He was going up there and run. Mr. Burton off the place. He was going up there on Monday. He said he was going to let him take three horses, a wagon, a ret of harness, and what old traps he could get in the wagon. He went on and said that he would have to leave his gun at home. Well, he said if he didn’t— he used a little language that don’t go well before ladies — he said if he didn’t leave Ms gun to home, he might have to kill the old son of a bitch.”

These men say when they returned on Sunday Mgbt they did not tell Mr. Burton what Mr. Parker bad said; only told Mm about Mr. Parker meeting them and taking the money for the wheat.

On Saturday Mr. Parker did sue out distress proceedings, but, not being made out correctly, he decided to go to the farm Monday and see if he could not settle the matter, making arrangements with Dr. Newland, if he could not settle, he would phone him, and for Dr. Newland to come after him in an automobile, and he would sue out a distress warrant. After he decided to go to the farm he had his pistol cleaned, the sheriff saying he advised him not to take it with Mm, and Mr. Parker said he would not do so. However, he did take the pistol with him, and had it in his right-hand pants pocket. On Monday deceased and his son drove to the farm, finding appellant in the blacksmith shop. Appellant says he saw the pistol while they were at the shop, but, a§ deceased said he came after a load of wheat, they all went to the field together and loaded the wagon with wheat. After the wheat was loaded, the versions of Vernon Parker and appellant differ in some particulars. Vernon says when the wagon was loaded his father told Mr. Burton he had a proposition to make him; that Burton sat down on his bucket, when his father told him he would let him (Burton) have the wagon, one or two sets of harness, and three or four horses that he claimed, pay two hands, and give him 100 acres of the maize and kaffir com; that he (deceased) would have to pay the store bill, and it would take the 'remainder to pay it. Burton declined the proposition, and got up and went to the blacksmith shop, 300 yards distant. Burton says: That when the wagon was loaded deceased placed his hand on his pistol, and told him he had a proposition to make to him; that he would let him have the four horses, one set of harness and the wagon, and he must move right off. That, when he declined this proposition, deceased said, “You will take this.” Becoming alarmed, he left and went to the blacksmith shop.

It further appears that when they drove out of the field there were two roads — one that led in the direction of Parker’s home, and the one he usually traveled; the other went by the blacksmith shop, whore Burton had gone, and on by to the barn. Vernon says the reason they took this road they did so to go by the barn to get some oats. Burton was not made aware of this fact. Vernon says his father was using both hands in driving the team, and just as he got past the blacksmith shop Burton jumped out, with a shotgun leveled, and said, “Parker, drop that gun or I will kill you;” that his father then reached for his pistol, and Burton fired, killing him. Burton says he supposed by Parker taking tMs road he was coming to the shop to again take up the settlement and put him off the place; that when he looked Parker had the lines in his left hand, Ms right hand being in his pocket where he had seen the pistol; that he grabbed his gun and said, “Parker, drop that gun,” hut, instead of dropping it, he looked as if he was trying to get it out of his pocket, and he shot.

It is thus seen that what took place at the immediate time of the shooting would present the issue of self-defense, from appellant’s standpoint, and the acts and conduct there alone would not be adequate cause to reduce the offense to manslaughter, nor raise that issue, but, if deceased was driving along, and Burton jumped out before Parker made any demonstration and told him to “drop the gun,” and then it was Parker attempted to get Ms pistol, it would be murder. But, to view the entire case from appellant’s standpoint, he contends that he was entitled to one-half interest in 17 head of horses, 45 head of cattle, one-half of 3,500 bushels of wheat, and one-half of the oats, barley, kaffir corn, and milo maize, and, if so, he would be more than able to pay the $800 debt; in fact, there would be left a surplus of some $500 or $1,000 as his part. Parker was trying to put him off the place in the middle of the year — in July. He had sent wheat to town, and Parker had intercepted it, and appropriated the proceeds, and then came out armed, and told him he must accept his proposition, take four head of horses, a set of harness, and a wagon, and move off. He left the field, and, if Parker had gone his usual road of travel, there apparently would have been no killing that day. But, viewing the matter from Burton’s standpoint, and as he testifies, Parker does not take the usual road of travel, but takes one that will carry him directly to or by the blacksmith shop, puts his right hand on his pistol, and drives directly towards where Burton had gone; Burton saying he thought he was coming to force him to accept Ms proposition and move off. Would this conduct, viewing it as it appeared to Burton, in the light of the preceding matters, be likely to engender in an ordinary mind that degree of anger, rage, or resentment as would likely render his mind incapable of cool reflection? If so, it would be proper to submit that issue to the jury, and, if they so found, he would be guilty of manslaughter, and not murder. We have read this record more than once, and we are of the opinion that it raises the issue of manslaughter, viewed in the light of all the circumstances in the case, and the court erred in not instructing the jury the law of manslaughter as applicable to that state of facts — in passing on the provocation at the time they should take into consideration all the antecedent circumstances in evidence.

While we would not reverse because evidence of the weight and height of Parker was admitted in evidence, yet such testimony is material to no issue in the case, and on another trial it should not be admitted.

The judgment is reversed, and the cause remanded.

PRENDBRGAST, P. J.

(dissenting). A careful consideration of all the evidence demonstrates manslaughter is not raised. Self-defense only was. The court charged fully on self-defense. TMs judgment should be affirmed, and not reversed. 
      <@^5>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     