
    COX v. STATE.
    (No. 9143.)
    (Court of Criminal Appeals of Texas.
    June 3, 1925.)
    1. Homicide <&wkey;47 — Charge limiting defendant’s right to kill to time of finding deceased in actual act of adultery held erroneous.
    Where testimony of defendant as to finding his wife and deceased in latter’s shack raised issue of manslaughter, charge limiting right to kill to time of finding deceased in actual act of adultery was erroneous.
    2. Homicide <&wkey;>47 — Refusal of special charge held erroneous.
    Where defendant’s testimony raised issue of manslaughter, it was error to refuse request that, if defendant believed deceased had committed act of adultery with -defendant’s wife just’ before homicide, and that he shot deceased when latter "was still in company with defendant’s wife, to return verdict of not guilty.
    Commissioners’ Decision.
    Appeal from District Court, Harrison Connty; P. O. Beard, Judge.
    Shirley Cox was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Geo. L. Huffman and Reagan R. Huffman, both of Marshall, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted in the district court of Harrison county, charging him with murdering Henry Lattimore by shooting him with a pistol, and convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of five years.

The facts briefly stated, as shown by the record, show that the appellant and the deceased were both negroes, and that on the day of the homicide the defendant, returning home rather unexpectedly, missed his wife, and in looking for her went to the “shack” of the deceased and when upon the porch just before he knocked on the door he heard the bed springs, and, after knocking, heard his wife jump off of the bed and run into the other room, and upon opening the door found the deceased in his underclothes and his wife in another room. The homicide occurred within a few minutes thereafter; the defendant contending that, when he called his wife, and just as they were preparing to leave the premises of the deceased, he shot the deceased in self-defense. In other words the testimony of the defendant raised the issue of manslaughter, self-defense, threats, and the killing upon the grounds of finding the deceased and his wife in the act of adultery. The court charged the jury on the adultery phase of the case as follows:

“And shall further believe that at the time the defendant shot and killed Henry Lattimore that the said Henry Lattimore was found in the act of adultery with the wife of the defendant, and the jury shall further believe that the killing took place before the deceased and the wife of the defendant had separated, if she was his wife, then find the defendant not guilty.”

The appellant’s counsel objected to said charge, because same limited the defendant’s right to kill the deceased to the time of finding him in the actual act of adultery, and presented a special charge, which was by the court refused, to the effect that, if the defendant believed the deceased and said Mabel Price had committed the act of adultery just before the homicide, and that defendant shot and killed deceased while said Mabel Price and deceased were still in company with each other, or if they have a reasonable doubt as to such, to return a verdict of not guilty. We think the contention of the appellant with reference to the court’s general charge on this phase of the case, and his refusal to give the special charge requested or a similar special charge, is well taken. Williams v. State, 73 Tex. Cr. R. 480, 165 S. W. 583, 585.

The appellant also excepted to said general charge, and presented to the court a special charge defining the term “before the parties to the act of adultery have separated,” which is set out .in bill of exception No. 5, and which special charge was refused by the court and not given in his general charge to the jury. We think the court was also in error in this particular. Price v. State, 18 Tex. App. 474, 51 Am. Rep. 322; Williams v. State, 73 Tex. Cr. R. 480, 165 S. W. 583-585; Holman v. State, 92 Tex. Cr. R. 365, 243 S. W. 1093.

In the Williams Case, supra, Judge Davidson, in discussing a similar .charge to the one complained of in the instant case, stated the following:

“As this charge is given, the jury may well have, concluded, under the facts, without appropriate instructions, that they could not give appellant the benefit of this statute, unless the appellant shot and killed at the very time of the act and while the parties were behind the barn. They might further have concluded from this charge that there must be shown by positive evidence the physical fact of .intercourse or copulation. This statute does not mean either. It is not necessary to prove by positive facts that the defendant saw the parties in the actual act of intercourse. This may be proved by circumstantial evidence, as well as by positive evidence. The circumstances may surround the matter in such condition as would legd appellant to believe or know, or any other reasonable man to believe and know, that the parties were in the act of intercourse, or about to engage in it, or had just engaged in it'. This would justify under the statute, if the killing occurred before the parties separated. Under this charge the jury may also have been led to believe that before the killing could be justified, that the adultery must occur at the time and immediately while the act was going on. This statute does not convey that idea, nor was it intended to convey that idea. On the contrary, it was not intended by this statute to limit the justifiable killing to the immediate act of carnal intercourse; that is, while the parties were in the act. -More than that, the court should, in this charge, have instructed the jury what adultery meant under this statute, so that the jury might intelligently pass on appellant’s rights under his view of the case, and under the testimony introduced by him to sustain that view.
“Again, we are of opinion the court should have 'instructed the jury pertinently and clearly what is meant by the statute whpn it uses the expression ‘before the parties to the act of adultery have separated.’ ”

We think the decisions, supra, cover the questions in this case, and show that the learned trial court was in error in the particulars complained of.

We have carefully examined the ether questions raised, but it is unnecessary to discuss them at this time, as from the disposition we have made of this case those questions might not arise upon another trial.

For the errors above discussed we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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