
    GARLAND v. STATE.
    (No. 10421.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1927.)
    1. Homicide <&wkey;309 (4) — Refusal to submit manslaughter issue, where defendant killed deceased while shooting at his enemy, held error.
    In homicide case, under evidence showing defendant killed friend by mistake, when shooting at enemy following quarrel, held error to refuse to submit issue of manslaughter.
    2. Homicide <&wkey;>309(4) — If evidence on whole case raises manslaughter issue, court must submit to jury, though accused’s testimony alone would exclude that issue.
    It is not necessary that testimony of accused raise the issue of manslaughter, but, if any evidence raises that issue, it is court’s duty to submit it to jury, even though accused’s testimony tends to show murder.
    3. Homicide <5&wkey;282 — Whether mental state existed, rendering killing manslaughter, held for jury.
    Where some evidence showed that accused might not have been capable of cool reflection when he committed homicide, the issue of manslaughter was for the jury.
    4. Homicide &wkey;s309(2) — Manslaughter should be charged^ when evidence raises a doubt as to whether that issue is in the case.
    When doubt exists as to whether evidence raises manslaughter issue, court should charge upon that issue.
    ■ Appeal from District Court, Tyler County; Tbos. B. Coe, Judge.
    Jewell Garland was convicted of murder, and be appeals.
    Reversed and remanded.
    
      J. A. Mooney, Sr., and J. A. Mooney, Jr., both of Woodville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Conviction is for murder; punishment being confinement in the penitentiary for five years

The party killed was Jim Lewis. The evidence shows that appellant and deceased were friends. The killing of Lewis resulted from a shot fired by appellant at one Mitchell. There is no controversy about the facts leading up to the shooting. Appellant was operating a dance hall. On the night of the killing he and Mitchell became involved in some trouble at the hall. Mitchell struck appellant over the eye with a bench, knocking him down and inflicting a wound which left a considerable scar. Appellant left the dance hall, went a short distance and secured a gun and returned to the hall looking for Mitchell. It is in evidence that the gun was not loaded at the time appellant returned to the hall; that Lewis, deceased, found a shell with which appellant loaded the .gun. Not finding Mitchell, appellant 'left the hall and went to the home of one Leg-gington to wash his wound, leaving word with deceased, Lewis, to close up the hall and bring appellant the key. This Lewis did, and in company with Leggington was on his way home. Just as they were approaching the house, Mitchell ran up behind .them. They did not know who it was, but appellant asked if it was not Mitchell. Receiving no reply, appellant said, “Now, I have got youand, as Mitchell turned to run through the house, appellant fired at him, the shot striking Lewis, resulting in his death the next day. Immediately upon discovering that he had shot Lewis, appellant picked him up, saying he did not intend to shoot him. The killing occurred within 15 or 20 minutes from the time appellant had been knocked down by Mitchell at the hall.

Upon this state of the record the court charged the jury that, if appellant, acted in his own self-defense in firing at Mitchell, and the shot struck Lewis, appellant should be acquitted, but declined to charge upon manslaughter. In this respect we think the learned trial judge fell into error. He must have based his refusal to charge on manslaughter on a statement made by appellant while testifying in his own behalf, that he was mad at Mitchell for having struck him on the head, and was angry when he went after the gun and when he returned to the hall; that he was not mad when he went up tp the house to wash his wound; that he got in a good humor and decided to let it go. However, he also testified that he was very much afraid of Mitchell, and thought when he came running up behind Leggington and deceased that he was going to renew an attack upon him, and thought he meant to kill him, and that was the reason he shot. He further said:

“I shot at Louis Mitchell because he had hit me. * * * I did not shoot him just because 1 was mad, nor. because of the difficulty down there (at the hall). * * * If he had not come up there running towards me, I would not have shot him.”

It is well settled in this state that, if the evidence upon the whole case raised the issue of manslaughter it is the duty of the court to submit that issue to the jury, although the evidence of accused himself might exclude the issue. ' Upon this point we quote from Steen v State, 88 Tex. Cr. R. 256, 261, 225 S. W. 529, 531:

“ * * * It is not necessary that the testimony of the accused be that which raises the issue of manslaughter. Indeed, he may assert that the killing was attributable to another cause than passion, but if the facts of the case in evidence fairly tend to indicate a homicide resulting from any such emotion of the mind as renders it incapable of cool reflection, it becomes the duty of the trial court to submit manslaughter and leave it to the jury the ascertainment of whether or not such killing was the result of such cause, and whether or not such cause was adequate.”

Upon the same point see Pickens v. State, 86 Tex. Cr. R. 657, 218 S. W. 755.

To our minds the issue of manslaughter seems to be raised in two ways. Appellant had been knocked down by Mitchell and a wound inflicted which evidently caused pain or bloodshed. If within 20 minutes thereafter appellant fired at Mitchell as a result of passion engendered by the previous assault, and there had not been sufficient “cooling time” for appellant’s mind to regain its composure, which was a question for the jury, the issue of manslaughter would arise upon that phase. It also occurs to us that it would arise upon the general conditions shown from the evidence. Mitchell had knocked appellant down a few minutes before. He says he thought Mitchell was about to renew the attack when he came running up in the dark behind Leggington and deceased and declined to answer when appellant asked if it was not he. It would be a question whether these circumstances were sufficient to arouse, in a person of ordinary temper, that degree of fear, resentment, or terror as would render the mind incapable of cool reflection, and whether it did have that effect on appellant and he fired at Mitchell while in this state of mind and killed Lewis.

The same facts which raise the issue of self-defense also frequently raise the issue of manslaughter, and, where the matter is doubtful, a charge upon manslaughter should be given. In the present case the jury evidently did not accept as true appellant’s statement that he fired in self-defense, but, if permitted to pass upon the issue, might have found that he was acting under the influence of passion aroused by an adequate causes at the time he fired. We do not discuss the matter at length. For other authorities bearing upon the proposition, the following cases are cited: Lewis v. State, 89 Tex. Cr. R. 345, 231 S. W. 113; Lara v. State, 48 Tex. Cr. R. 568, 89 S. W. 840; Miller v. State, 52 Tex. Cr. R. 72, 105 S. W. 502; Green v. State, 58 Tex. Cr. R. 428, 126 S. W. 860; Williams v. State, 61 Tex. Cr. R. 356, 136 S. W. 771.

The judgment is reversed, and the cause remanded. 
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