
    VOLLINTINE v. STATE.
    (No. 3635.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.
    On Rehearing, Oct. 13, 1915.)
    1. Criminal Law <&wkey;193% — Former Jeopardy.
    Where defendant tried for murder was acquitted by a conviction of manslaughter, the issue of murder could not be submitted in another trial, though the court, in submitting manslaughter, might charge as to what constituted murder.
    [For other cases, see Criminal Law, Cent. Dig. §§ 366, 387, 389, 394; Dee. Dig. &wkey;393y2.]
    2. Homicide &wkey;>300 — Instructions — Self- ' Defense.
    In a trial for murder, where the issue of self-defense was raised, an instruction that defendant, in exercising such right, could use only such degree of force as it reasonably appeared to him at the time and place was necessary to protect himself against unlawful violence, was erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. &wkey;j¿00.]
    3. Homicide &wkey;>300 — Instructions—Threats.
    Where the evidence in a trial for murder raised the issue of self-defense based on threats, the refusal to submit it was error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <&wkey;>300.]
    4. Homicide <&wkey;47 — Manslaughter — “Adequate Cause.”
    Adultery of the deceased with the wife of appellant was “adequate cause” which might reduce the homicide to manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 71; Dec. Dig. <&wkey;47.
    For other definitions, see Words and Phrases, First and Second Series, Adequate Cause.]
    5. Homicide <&wkey;>341 — Instructions—Manslaughter-Adequate Cause.
    In a prosecution for murder, a charge on manslaughter that, if defendant believed that the deceased had improper relations with his wife, it would be adequate cause, was sufficient, and a failure to further charge that, if he believed that deceased had had improper relations with appellant’s wife, such belief by him would be real to him, whether such relations existed or not, is not error requiring' reversal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 721; Dec. Dig. &wkey;341.]
    6. Homicide <&wkey;181 — Evidence—Letter.
    In a prosecution for murder, wherein defendant alleged as provocation that deceased had had improper relations with defendant’s wife, the contents of her letter to deceased was inadmissible, but the fact that deceased received a letter from her and the registry receipt for it to which his answer to her was in reply was admissible.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 383-385; Dec. Dig. <&wkey;>181.] Prendergast, P. J., dissenting in part.
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    J. T. Vollintine was convicted of manslaughter, and he appeals.
    Reversed, and cause remanded.
    B a shin, Dodge, Bashin & Eastus, of Ft. Worth, and Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   URENDERGAST, P. J.

Upon a trial for murder appellant was convicted of manslaughter and assessed the highest punishment.

In view of the disposition we make of this case, we will give no extended statement of the evidence. Unquestionably the evidence raised, and it was the duty of the court to submit, the issue of murder, and the court did not err in so doing. However, under the law, as appellant was acquitted of murder, of course, that issue cannot be submitted in another trial, although it may be proper for the court, in order to properly submit the issue of manslaughter, to inform the jury what is murder, as is frequently necessary to do when an accused is tried for manslaughter only.

By appellant’s testimony alone self-defense was raised, and this issue, based on his testimony, was as favorably submitted in his behalf by the court’s charge as the law and facts would authorize. However, after thus submitting the issue the court added thereto subdivision 14 as follows:

“You are further instructed that; in exercising his right of self-defense, the defendant is permitted only to use such degree of violence as it reasonably appeared to him at the time and place was necessary to prevent or protect himself against such unlawful violence.”

In proper time appellant specially excepted to this. We think it clear under the authorities that this instruction under the facts of this ease should not have been given. Branch’s Grim. Law, § 451.

The court refused to submit a charge on self-defense based on threats. This was properly excepted to and the point saved, and appellant even requested a special charge on the subject. In -our opinion, the evidence raised this issue, and the court erred in refusing to submit it.

In the charge on manslaughter the court properly told the jury that adultery of the deceased with the wife of appellant was adequate cause. He further told them that, if the defendant believed that the deceased had improper relations with his wife, this would constitute adequate cause. Appellant complains of these charges' in that the court should have gone further and told the jury as requested in his special charge, that if they believed from the evidence that appellant believed that deceased had had improper relations with appellant’s wife on the occasions of their meeting at a certain place in Dallas and at a certain other place in Ft. .Worth, or either, then such belief by him would be real to him, whether such improper relation was, in fact, had or not. We think it may have been proper to have given such an instruction under the facts of this case, but it is not such error as we think would justify a reversal. However, it might be better for the court to embrace this matter in a proper charge on another trial.

In the opinion of this writer, the letter of appellant’s wife to deceased, dated September 12, 1914, in view of appellant’s testimony and the letter of the deceased in reply to appellant’s wife, introduced in evidence by him, was properly admitted in evidence. 'His Brethren, however, incline to the opinion that the contents of the letter should not have been admitted in evidence, but the fact that deceased received a letter from her and the registry receipt for it to whifch his answer to her was in reply was admissible in evidence.

There is nothing else raised which presents any error or needs any discussion. Owing to the near approach of the adjournment of this court for the term and the press of many other matters, a full discussion of the questions decided is pretermitted.

For the errors above pointed out, the judgment is reversed, and the cause remanded.

On Eehearing.

We think the original opinion, wherein we held the court on another trial should charge, as insisted by appellant, to the effect that, if appellant believed deceased had had improper relations with his wife, “then such belief by him would be real to him,” is not correct, but the court’s charge, as given, is sufficient. With this correction in the original opinion, the motion for rehearing is overruled. 
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