
    NELSON v. STATE.
    (No. 5120.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    1. Homicide <&wkey;271, 309(4) — Question eoe Juey — Instbuctions—Manslaughter.
    If there is some evidence which supports the theory of adequate cause, and that a killing was on account • of passion arising therefrom, the court is not the judge of its possible truth, and should leave it to the jury, submitting the issue of manslaughter in an instruction.
    2. Homicide <@=308(2) — Degrees oe Muedee —Instbuctions.
    Since Acts 33d Leg. c- 116, § 1 (Vernon’s Ann. Pen. Code 1916, arts. 1140, 1141), amending the statutes, so as to do away with the degrees of murder, it is improper for the court to charge on the different degrees.
    3. Mabeiage <&wkey;13 — Common-Law Mabeiage —Pboof.
    That a couple were living together, and some time intended to marry, was insufficient to show a common-law marriage.
    4. Homicide <@=165 — Issues — Evidence — MARRIAGE.
    In a prosecution for murder, it was immaterial whether deceased was the wife or mistress of accused.
    Appeal from District Court, Payette County; M. C. Jeffrey, Judge.
    Robert Nelson was convicted of murder, and be appeals.
    Reversed and remanded.
    John T. Duncan, of La Grange, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and bis punishment assessed at 50 years in tbe penitentiary.

Appellant and deceased were negroes. They had lived together for several years prior to the time he killed her. He lived with her, and supported her and her child by a former husband, just like he would if they had been legally married. He said they intended at some time to marry. He became much attached to her, he said, and that he was living with her, and treated her as if she was his wife, and felt towards her like she was his wife. While he was off somewhere from the home where they- lived, she and her girl left there and went off to some other town. Appellant was informed that she had gone off with a negro man. I-Ie went up after her, and found her; but no other negro man was with her when he found her. She willingly returned with him to their home. He said he had been informed that she had gone off with the other man for improper purposes; but he did not know this, and it seems he claimed not to believe it. When they returned to their home that morning, he asked her about it. She denied it. He told her that a certain person had told him. It was agreed between them then, he says, that they would send for this person who had told him, and she claimed she would prove by him that the accusation against her was untrue. They thereupon sent her little girl for the man, and after the girl left appellant claimed that they discussed the subject some further, and that she ascertained that when the man they had sent for came he would ask him such questions as it seems she concluded would reveal the fact that she had been untrue to him. Thereupon, he says, she admitted the fact that she had been untrue to him with the other man, and that on one occasion she had given to the other man money that the appellant had given her for her own use. He claims that this admission by her at the time in effect ran him mighty near crazy; that he jumped up and grabbed his gun and shot her; that when she admitted her guilt with the other man that it made him angry, and the substance of his testimony as a whole raised the question of manslaughter. It might be stated that the testimony raising manslaughter was not very strong— rather weak.

The court did not submit the issue of manslaughter to the jury. Appellant specifically objected to the court’s charge on that account, and went into sufficient particulars as to what ho claimed the testimony showed which raised the issue.

The rule is that, if there is evidence which supports the theory of adequate cause and that the killing was on account of passion arising therefrom, the court is not the judge of its possible truth, but should leave it to the jury. 2 Branch’s An. P. O. § 2009, and cases there collated.

In addition to the exceptions by appellant to the court’s charge, because he failed and refused to submit tbe issue of manslaughter, he asked a special charge submitting that issue, which was refused, and to which he excepted. While the evidence was amply sufficient to sustain, and might be held to call for, appellant’s conviction of murder, and not that of manslaughter, yet, as the testimony raised the issue of manslaughter, the court should have charged thereon, and his failure and refusal to do so presents reversible error.

The court did not err in his charge in submitting the issue of murder. Since the act of the Legislature of 1913 (Acts 33d Leg. c. 116, § 1, Vernon’s Ann. Pen. Code 1916, arts. 1140, 1141), amending our statutes so as to do away with the degrees of murder, it would have been improper for the court to have charged the different degrees as contended for by appellant, as has many times been held by this court since the statute was amended.

The testimony was insufficient to show that appellant and deceased were husband and wife under a common-law marriage. Grigsby v. Ried, 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011; Melton v. State, 71 Tex. Cr. R. 146, 158 S. W. 550; Nye v. State, 77 Tex. Cr. R. 390, 179 S. W. 100. Hence the court did not err in refusing to submit an issue to the jury of whether or not appellant and deceased were husband and wife. Again, it would have been wholly immaterial to any issue in this case whether, the deceased was the common-law wife of appellant or was his mistress — kept woman. It may be that to have shown that she was his wife would have been against appellant, and not for him. At any rate whether she was his common-law wife or not was an immaterial matter.

Appellant’s bill to the exclusion of the testimony of his witness Gaertner, as qualified and explained by the court, showed no error. The only error shown by the record is the court’s failure and refusal to submit the issue of manslaughter.

Reversed and remanded. 
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