
    BROOKRESON v. STATE.
    (No. 6796.)
    (Court of Criminal Appeals of Texas.
    June 7, 1922.)
    1. Homicide <§=3)309(I) — Instruction on man-; slaughter held erroneous, as omitting effect of combined assault on defendant in arousing his passion.
    In a prosecution for murder, where the question of fact as between murder and manslaughter was close, an instruction that, if defendant’s mind was rendered incapable of cool reflection because of any conditions or circumstances, or acts of deceased or his brother calculated to create anger, rage, sudden resentment or terror, defendant was guilty of manslaughter, held reversible error, as failing to authorize the jury to consider the effect of a joint assault or action by deceased and his brother, who defendant testified were armed with knives and sought to approach him from opposite directions after he had fled from them, as an element in arousing his passion.
    2. Criminal law @=>l 134(3) — Fine and reprimand of defendant’s attorney, improper argument, and reference to deceased’s brothers and sisters as orphans, should be considered on appeal.
    On appeal from a conviction of murder, where the question of fact as between murder and manslaughter was close, a controversy in the course of which defendant’s attorney was fined, and objectionable language used by the judge in reprimanding him, argument that the criminal laws are designed, not only to punish offenders, but to deter others, and that there were a number of other similar cases pending, proof that deceased’s father was dead, and reference to his brothers and sisters as orphans, should be considered, though individually slight and not likely to occur on another tidal; the tendency thereof being against defendant.
    Appeal from District Court, Taylor County; W. R. Ely, Judge.
    Newt Brookreson was convicted of murder, and he appeals.
    Reversed and remanded.
    J. M. Wagstaff, of Abilene, W. P. Maliaf-fey, of Merkel, D. J. Brookreson, of Benjamin, and J. E. Cunningham, of Abilene, for appellant.
    W. J. Cunningham, Dist. Atty., and Stin- ■ son, Coombes & Brooks, all of Abilene, and R. G. Storey, Asst. Atty. Gen., for tbe State.
   MORROW, P. J.

Conviction is for the offense of murder; punishment fixed at confinement in the penitentiary for a period of 25 years.

Appellant shot and killed Oscar Knight, who, together with his brother, Oliver Knight, were tenants' upon the farm belonging to the appellant. Appellant directed that some cattle be turned into a field which his tenants were using as a pasture. Being informed that the deceased objected to the cattle in the pasture, appellant turned the stock belonging to the deceased and his brother out of the pasture. They afterwards met on appellant’s farm. Appellant was driving through the farm in an automobile, in which he had a gun loaded with No. 4 or No, 6 shot. He got out of the car and walked to a point in the field at which the deceased and his .brother and some others were engaged in cutting maize. A friendly conversation ensued concerning the maize. Following this, a conversation took place about the pasture, which ■ culminated in a quarrel.

According to the testimony of Oliver Knight, when appellant told them that their stock had been turned out of the field, they remonstrated, claiming the right under their contract to use the field for a pasture.. This the appellant denied, and in the same connection said that he would keep the stock where he pleased, and would whip the deceased besides. The witness interposed, with a .view.of preventing trouble. In the meantime, the parties were walking in the direction of appellant’s car, which was standing at the turn row. After reaching a point about half way to the car, the appellant ran in the direction of the car. Appellant appeared very much excited upon reaching the car. He got his gun and presented it, claiming that both the deceased and his brother were following him with knives. The witness Oliver Knight h'ad a knife in his hand, which he had been using in heading maize. Upon appellant making the remarks mentioned, he apologized, and closed the knife up, and put it in his pocket. The deceased was not armed, though one hand was under his jumper. The witness said that, after appellant got to his car, he appeared to have no reason at all, and when the deceased was about 15 feet away the appellant shot him, and turned and shot and wounded the witness.

Appellant’s testimony was to the effect that, prior to the difficulty in which the homicide resulted, the relations between the parties had been friendly. Upon the day of the homicide, he learned that the deceased objected to allowing appellant’s cows in the field; that he had an engagement with his wife and several othér members of his family to take them to the farm for the purpose of gathering pecans; that he took his gun along with him for the purpose of killing squirrels; that, leaving his family in the pecan orchard, he did some work, and in the course of it saw some boys in a wagon about 50 or 100 yards away. He went to them, and found the deceased and his brother Oliver there. After some friendly. conversation touching the disposition of the maize and repairs of fences, the right to the use of the field for pasturage came under discussion. The appellant contended that the contract did not authorize its use by the tenants. The deceased took the contrary position, and insisted that he would continue to put his stock in the field. Hot. words and threats ensued.

According to appellant’s version, both deceased and his brother had knives open in their hands at the time. Appellant started to pass them, and they followed him. On reaching a point about 35 or 40 yards from the car, appellant ran to it and got his gun, and told the deceased and ,his brother to stop; that otherwise he-would shoot them. He replaced his gun in the ear, and deceased said: “Tes; you made a gun play on us, didn’t you?” Appellant said: “Yes; you both ■ were trying to jump on me with your knives.” At the time Oliver Knight began to take a position at appellant’s back, and appellant began to retreat in order to keep Oliver in front of him; that, on reaching a point near the middle of the car, Oliver and the deceased, both of whom were nearby, started at him. Appellant turned back and shot the deceased, and then whirled and shot Oliver, who was dodging down behind the .ear.

From their manner and their tone, and the expressions upon their faces, the deceased and his brother impressed the appellant that they were excited and angry. He ran because there were two of them; that he was nervous, and was afraid of them; that when he first reached his car, and got his gun, they stopped. He made no attempt to shoot them, although he had an opportunity to do so had he so desired. The deceased, at the time he was shot, had one hand in his pocket and the other under his jumper. At that moment appellant did not know what he had in his hand; that he backed 10 or 12 feet before he shot, the deceased advancing in the meantime. Appellant said he acted under the belief that the two brothers were going to either beat or kill him.

The court instructed on the law. of mlu-der, manslaughter, and self-defense. In submitting the case on the issue of manslaughter, the jury were told that, if they believed that—

“at the time of the killing the mind of the defendant was rendered incapable of cool reflection, by reason of any condition or circumstance, or combination of circumstances, or acts and conduct of the deceased, Oscar Knight, or bis brother, Oliver Knight, or either of them, calculated to create and did create in the mind of the defendant, either of the emotions known as anger, rage, sudden resentment, or terror, at the time of the homicide, rendering the mind of the defendant incapable of cool reflection, then you will find the defendant guilty of manslaughter.”

Against this charge there is directed the criticism that it is defective, in that it fails to take into account the effect of the joint assault or action of Oscar and Oliver Knight as an element in arousing the passion of the appellant at the time of the homicide. . Prom appellánt’s standpoint, he was the subject of a threatened attack by both the deceased and his brother. As viewed by him, and according to his testimony, they were acting together, with the common design to do him injury, and were armed with knives. While one approached him, the other sought to get behind him. tie had fled from them, and they had pursued him; he had put his gun back in the car, and they pressed nearer to him. In view of his testimony, suggesting these issues, bearing in mind that there is no evidence of previous grudge or ill will, the defensive theory of manslaughter was an element in appellant’s favor. In submitting it, no terms should have been used which j would have restricted appellant’s rights to j have the jury determine whether, from the words and acts of each of his adversaries, or from their combined acts, his mind was reduced to a state rendering it incapable of cool reflection. We understand this to be in consonance with the law as declared by this court. See Norris v. State, 42 Tex. Cr. R. 567, 61 S. W. 493; Gant v. State, 55 Tex. Cr. R. 292, 116 S. W. 801; Brown v. State, 54 Tex. Cr. R. 127, 112 S. W. 80; Rodgers v. State, 85 Tex. Cr. R. 338, 212 S. W. 166; Garcia v. State, 70 Tex. Cr. R. 488,156 S. W. 939; Stacy v. State, 48 Tex. Cr. R. 95, 86 S. W. 327.

•On the former appeal, of this ease, Presiding Judge Davidson expressed the view that, between the issue of murder. and manslaughter, the question of fact was a close one. See Brookreson v. State, 88 Tex. Cr. R. 150, 225 S. W. 375. Under different circumstances, the fault of the charge might be regarded as not of sufficient weight to bring about a reversal. It is, however, as we have indicated, inaccurate, in that it fails to authorize the jury to take into account an element of the case which, with their attention directed to it, they might have regarded as important and favorable to the appellant; that is, the effect of the evidence that, from the appellant’s viewpoint, he was the subject of attack from both the deceased j and his brother, that they were acting in concert, and by their combined efforts were seeking to take him at a disadvantage.

In addition to this, there are other matters in the record which, while taken singly, might not he of controlling weight, but which, in view of the close issue of fact are due some consideration in guiding the court to a conclusion. They are not such as will likely occur upon another trial; nor do they require discussion in detail. They had to do with a controversy over certain evidence given upon the former'trial touching the presence of a knife at the scene of the homicide after the deceased was killed. In the course of it, a fine was entered against one of the attorneys for the appellant and afterwards remitted. Language was used by the judge, in reprimanding the counsel, to which exception was taken. In argument, reference was made to the fact that the criminal laws were designed, not only to punish offenders, but to deter others, and the statement was made that there were a number of other similar cases pending.

Proof that the father of deceased was dead was made, and his brothers and sisters were referred to as orphans. While individually slight, the tendency of these occurrences was against the appellant. In view of the evidence, the charge complained of, and the entire record, this court is not willing to approve the verdict.

The judgment is therefore reversed, and the cause remanded. 
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