
    HOLCOMB v. STATE.
    (No. 9337.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1925.
    Rehearing Denied March 10, 1926.)
    On Motion for Rehearing.
    1. Homicide <&wkey;40— Unless jury believe killing of one dishonoring sister of accused actually did result from uncontrollable passion, and took place at first meeting after accused had been informed of deceased’s conduct, they might reject defensive claim that killing was ' only manslaughter.
    Although conduct of deceased in dishonoring sister of accused is sufficient in law to produce uncontrollable passion reducing killing to manslaughter, unless jury believe that killing actually did result from such uncontrollable passion, and did take place at first meeting be-' tween accused and deceased after information' of deceased’s conduct had been received, they' might reject defensive- claim that homicide was only manslaughter and render verdict of murder.
    2. Homicide <&wkey;40.
    A killing for insults to female relative will not be manslaughter unless it took place at first meeting between parties.
    Appeal from District Court, Stonewall County; Bruce W. Bryant, Judge. • i
    Jim Holcomb was convicted of murder, and he appeals.
    Affirmed.
    
      '.' ■ J. F. Cunningham, of Abilene, and A. J. Smith and Lon' Brooks, both of Anson, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

Appellant appeals this case from a conviction, in the district court of Stonewall county of murder, with punishment fixed at ten years in the penitentiary.

The facts in this case are closely allied to those in cause No. 9289, W. C. Holcomb v. State, 281 S. W. 202, opinion this day handed down. Appellant was the son of W. C. Holcomb and brother of the girl, information- as to whose intercourse with deceased is laid as the cause for the killing. The defensive theory is that upon learning of the conduct of deceased toward the sister of appellant, he and. his father, acting together, went to where deceased was in a car, and both fired their guns at deceased, from the effect of which shooting he .died, and that this at best is no more than manslaughter. In addition to the facts given in testimony upon the trial of W. C. Holcomb, the state introduced testimony in- this case which seems to sufficiently show a meeting between appellant and deceased on one or two occasions after, the communication of the alleged insulting .conduct and before the homicide.

■ . We find in the record no bills of exception, and the only contention briefed by appellant’s able counsel is that the evidence is insufficient to support a judgment' for murder and the assessment of a ten-year penalty. We have carefully reviewed the facts, and are unable to agree with appellant’s contention. Our views are expressed to some extent in the ease of Holcomb v. State, supra. The communication to appellant of the fact of the alleged betrayal of his sister by deceased appears to have been some weeks, if not months, before.the alleged homicide. It is manifest that efforts were made to bring about' the marriage of deceased with the girl, which failed because of' the refusal of deceased so to dó; he claiming that he was not guilty of having carnal knowledge of her. Efforts also are reflected in the record of an attempt on the part of appellant and ’ his brother to have a personal interview with deceased, having for its object the bringing about' of said marriage.

The 'state witnesses unquestionably show a' meeting between the' parties prior to the homicide: Once on' a road where deceased on foot met appellant; who was in a truck, and another time when deceased passed by where appellant was, and a'witness said that while deceased was' yet in sight appellant stepped to the corner of a building; apparently to see which way deceased went. The testimony as to the'mental condition^ of appellant at the time of .the. homi--cide as well as to the fact of- there haying been a previous meeting was for .the jury’s consideration. Their verdict makes it appear that they did not believe the' killing was under the influence of sudden passion arising from the fact of- the communicated insult, or else that they believed the case not one of manslaughter because of the former meeting of the parties.

There being nothing in the record to cause this court to believe that the verdict was the result of prejudice against this young man, and, the jury having support for their verdict, the judgment will be affirmed.

On Motion for Rehearing.

Appellant urges again only the lack of evidence to support a conviction for homicide of a higher offense than manslaughter. The facts have again received our careful attention, which only strengthen-our. belief in the correctness of the former opinion. We now observe that appellant admitted- in his own testimony that he met deceased out on the road at- a- time when appellant was in a truck and had his gun, but he said this was before he knew anything about his sister’s trouble. It is conclusively established that appellant learned of his sister’s disgrace on the 15th of February. The hardware man who sold appellant the Winchester rifle which he carried testified that .it was. after the 14th that he sold him the gun. If appellant had this gun in the truck with him when he met deceased on the road, it must have been after he was informed of his sister’s disgrace. Witness Anderson swore that the time he saw appellant and 'deceased meet out. in the country when. appellant¡ was. in a truck and had his gun with him; was about a week before the homicide. This would make the meeting occur a week or more after it is admitted appellant learned of the disgrace of his sister and of the connection -of deceased with same. Said witness testified that appellant was coming down the road in a truck with his gun, ahd that deceased was walking- on foot up the road, when* the two parties-met.' It would be difficult to conceive how appellant could fail to see deceased, and, in view of his own admission that he did see him on an occasion' when, he had his gun,‘this seems to remove any question both; of the meeting and of the fact that appellant saw deceased. The' sheriff. of .the county testified that he took from appellant and his father a shotgun and a Winchester rifle. The date of this occurrence was fixed by appellant himself in his testimony as on •the 22d of February preceding the killing on the 3d of March.

When a killing is because of insults to a female relative, one Of the'things necessary, before same will be manslaughter, is that' it b'e shown that same took place at the first meeting, between the parties,. The sheriff testified that he saw appellant and his brother at the Senter garage and had a conversation with them in reference to Hack Hart, and he told them that he had seen him, and they wanted to know what Mack was going to' do about it, and he informed them that deceased was not going to do anything, was not guilty, and said he was not going to leave the county. They asked the sheriff to go get Mack and bring him to town and let them talk to him, but he told them he could not do it. This was four or five days before the shooting. We are unable to conclude that the jury were not justified in finding this appellant guilty of mux-der. Admitting that the conduct of deceased was deserving of the severest censure, and that it was such as our law concedes to be adequate.’cause to produce an uncontrollable passion which would reduce the killing to manslaughter, if the jury believed it caused and produced the killing, still it must be borne in mind that, unless the jury believe that the killing did result from such uncontrollable passion, and did take place at the first meeting between the accused and the deceased after the former has received information of the insulting conduct, they would be within their province in rejecting the defensive claim that the homicide was only manslaughter and in rendering a verdict for murder.

The motion for rehearing will be overruled. 
      ‘-'«Ss^Kor other oases see same topic and KEY-NUMBER in- all- Key-Numbered Digests and Indexes-.
     