
    PINKERTON et al. v. STATE.
    (No. 6068.)
    (Court of Criminal Appeals of Texas.
    June 24, 1921.)
    1. Homicide @=>340(4); — Error in not defining express malice immaterial.
    Where defendants’ punishment was fixed at imprisonment for a term less than would under the old law have applied to murder in the first degree, the failure of the charge to define express malice which distinguishes murder in the first degree from that of the second is immaterial; the degrees in murder having been abolished.
    2. Homicide @=»9 — Unnecessary that defendants have design at the time they went to deceased’s place of business.
    In order for a killing to amount to murder, it is unnecessary that defendants should have a design to kill at the time they went to deceased’s place of business, and special charges declaring that such intention was necessary, etc., were properly refused. *
    3. Criminal! law <⅝=>800'(1) — Charge on the right to aid companion held misleading for not defining interference.
    In a prosecution for homicide, where it appeared that deceased objected to defendants’ aiding their companion when he requested them to pull off the third person who was beating him, a requested special charge that, if deceased interfered, defendants were entitled to use such" force as was necessary to prevent him from interfering with their aid, was misleading in not defining the term “interfering” particularly, where it did not appear whether the interference was merely verbal or not.
    4. Homicide 122 — Mere verbal objection to defendants’ aiding another held not to authorize them to use force against decedent.
    Where deceased verbally objected to defendants’ aiding a companion who was being beaten by a third person, such verbal 'objections did not warrant defendants in using force against deceased.
    5. Criminal law <®=>8I4(I7) — Charge on circumstantial evidence unnecessary.
    In a prosecution for homicide, where both of the defendants took part in the fatal killing, a charge on circumstantial evidence was unnecessary.
    6. Homicide <S=s309(6) — Charge on manslaughter improper because too restricted.
    In a prosecution for homicide, where there was evidence that deceased abused and assaulted defendants and was larger and more powerful than they were, etc., a charge which confined the jury in deciding whether) there was any adequate cause to whether an assault causing pain and bloodshed had been committed was too restricted for the enumeration of matters constituting adequate cause in Vernon’s Ann. Pen. Code 1916, arts. 1131 and 1132, is not in view of Pen. Code 1911, art. 1130, and Vernon’s Ann. Pen. Code 1916, art. 1138, exclusive of others, and it was improper to exclude from the charge other facts -which should he considered in connection therewith.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    Frank and Bill Pinkerton were convicted of murder, and they appeal.
    Reversed.
    Mack Taylor and J. A. Johnson, both of Stephenville, for appellants.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for murder. Punishment fixed at confinement in the penitentiary for fifty years.

The appellants and other young men, including a boy by the name of Brown, and one named Brandon, were in the village of Lingleville, and late in the afternoon the Brown boy and the Brandon boy had a difficulty in which Insulting language was used. Lajer all of the parties mentioned went to a singing, and after the singing to a restaurant in which the deceased was working. The difficulty between Brown and Brandon was renewed. Brandon, who, according to some of the evidence, was larger than Brown, was getting the better of the conflict; Brandon having him down on the porch when the appellant Frank Pinkerton was called upon by Brown for help. Frank Pinkerton got- hold of the Brandon boy and was in the act of pulling him off when the deceased appeared and remonstrated with the appellant, Frank Pinkerton, and objected to his interfering with the conflict.' The appellant Bill Pinkerton engaged in the conversation, and both of the appellants were struck by the deceased. Subsequently it appears that in the fight that ensued Frank Pinkerton cut the deceased-with a knife, and he was shot by Bill Pinkerton.

The issues of murder, manslaughter, self-defense, provoking the difficulty, and the law of principals were submitted to the jury.

Appellants excepted to the charge upon the ground that malice aforethought was not properly defined. Without quoting the charge upon that subject, we will say that we find in it no material departure from definitions approved by this court. Martinez v. State, 30 Tex. App. 129, 16 S. W. 767, 28 Am. St. Rep. 895; Branch’s Crim. Law, § 421; Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087; Ellis v. State, 30 Tex. App. 604, 18 S. W. 139.

In connection with this exception, a special charge was requested which embodied the definition of express malice. See Miller v. State, 32 Tex. Cr. R. 321, 20 S. W. 1103; Martinez v. State, 30 Tex. App. 137, 16 S. W. 767, 28 Am. St. Rep. 895.

The precedents touching the proper definitions of express malice are found mainly in cases arising before the statute abolishing the degrees in murder was enacted and in cases in which the conviction is for murder in the first degree, the penalty for which was life imprisonment or death. In the decisions mentioned, generally speaking, the charge on murder in the first degree, which was inaccurate in defining express malice, would not authorize a reversal of the judgment wherein the conviction was for murder in the second degree. Halbert v. State, 3 Tex. App. 658; other cases listed in Branch’s Ann. Tex. Penal Code, p. 1158.

Appellants’ punishment having been fixed at imprisonment for a term of less than would, under the old law, have applied to murder in the first degree, we think the failure to define “express malice” cannot be the basis of a just complaint. If not rendered altogether unnecessary, the importance of defining “express malice” was much modified by the statute abolishing degrees in murder. It is conceived that under the present law the subject of “express malice” is relegated to cases relating to denial of bail, and those in which the death, penalty is assessed.

The requested special charge embracing a number of matters was refused. In substance, the special charge was to the effect that the offense would not be murder unless at the time the appellants went to the place of business of the deceased with the intent to kill him or inflict upon Mm serious bodily wounds; that, if at the time they went to the place of business the intent to kill oí-do bodily harm existed in the mind of one of the appellants without the knowledge of the other, the latter would not be guilty of murder, though he inflicted the fatal wound.

In the special charge was also embodied the idea that, if the appellants went to the place of business of the deceased with the intent to assault him, but not with the intent to kill or seriously injure him, there would be no conviction for murder. All of these phases of the special charge are properly disregarded. It was not necessary that the proof show that the appellants or either of them entertained the intent to kill or do serious bodily harm at the time they- went to the place of business of the deceased. Such a design might have been subsequently formed, and still their acts embrace all of the elements of murder. The court fully instructed the jury, in connection with his charge on provoking the difficulty, in an appropriate language in telling them that, although the difficulty was provoked by them by acts reasonably calculated and intended to do so, if the intent was to do a minor injury, and not to kill or inflict serious wounds, murder could not result.

Another phase of the special charge is embodied in the proposition that, if the appellants were seeking to protect Brown from the assaults of Brandon, and the deceased “interfered,” the right existed in the appellants to exert such force as was necessary to prevent the deceased from “interfering,” and that, if the deceased assaulted them, they had a right to use the force necessary to defend, viewing the danger from their standpoint.

There was no defect in the court’s charge on self-defense, which the special charge mentioned would have tended to correct. It was misleading, leaving the jury unadvised as to what the court meant by “interfering.” It was undisputed that he did interfere with him, but at what stage of the proceedings, if at all, his interference went beyond a mere verbal protest was the subject of the controversy.'

The requested special charge was improperly drawn, failing to segregate and submit individual charges to the several propositions contained, but, if this course has been followed, its refusal was nevertheless proper. It ignores the motive which controlled the entry of the appellant Frank Pinkerton into the conflict between Brown and Brándon. It takes no note of the evidence touching the character of the supposed interference, and is drawn without reference to the. evidence suggested that the conflict with the deceased was voluntarily brought on by the appellants with the intent to injure him. The right of the appellants to use force upon the deceased would not have accrued while his so-called interference was merely verbal, and their right in the conflict with him was subject to modification by the jury as to who began and who caused the encounter.

The appellants and one Monday and the Brown boy were together. There was evidence that after the singing they went to the place of the deceased together; that in the fight between Brown and Brandon the appellant Frank Pinkerton was called upon by Brown and sought to interfere; that the deceased protested; that a quarrel ensued in which epithets were used, at least by the appellant Frank Pinkerton; that both Frank and Bill Pinkerton were struck by the deceased ; that in the struggle that ensued the deceased was seriously wounded with a knife and shot with a pistol.

We discern no substantial defect in the definition of the charge on principals. See Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046; Branch’s Ann. Tex. Penal Code, §§ 685, 686.

That both of the appellants took part in the conflict with the deceased does not admit a doubt under the evidence. The charge on circumstantial evidence, therefore, was not rquired.

In applying the law to the facts, the following language is used:

“If, therefore, you believe from the evidence in this case, beyond a reasonable doubt, that in the county of Erath and state of Texas, and on or about the 16th day of May, 1920, the deceased, New-man Bostic, committed an assault and battery upon either Bill or Frank Pinkerton or both of them, causing pain or bloodshed, and that Bill Pinkerton and Frank Pinkerton were both present at said time and place, and under the influence of sudden passion caused by such assault, if any, and battery, if any, either Bill or Frank Pinkerton shot and killed Newman Bostic' and adequate cause existed for such killing, and that the other-acted together with the party doing the shooting and killing as a principal, as that term has been defined herein, and that the said Bill Pinkerton or Frank Pinkerton had not provoked the contest or difficulty with the deceased with the intention of killing him, then you will find the defendants guilty of manslaughter and assess their punishment at confinement in the penitentiary of this state for any term of years not less than two nor more than five, in your discretion.”

In some respects the paragraph of the charge on manslaughter which has been quoted is not accurate. If the jury believed from the evidence that' an assault and battery causing pain or bloodshed was committed by the deceased against Frank Pinkerton, such an assault and battery would have been sufficient, as a matter of law, to reduce the offense to manslaughter. It was not necessary, to avail himself of this mitigating matter, that the proof should show beyond a reasonable doubt that the assault was made.

It is urged that the charge on manslaughter was too restrictive, in that it confined the jury, in deciding whether there was adequate cause, to whether an assault producing pain or bloodshed was made by the deceased. It is insisted that there were other facts upon which the jury might have predicated the finding ’ of adequate cause. There was evidence that the deceased was a taller and stronger man than either of the appellants; that he was a fighting man; that his brother, about 19 years of age, larger and stronger than he, was present; and some evidence that another brother was likewise there. Touching the relative size and strength of the Brown boy and the Brandon boy, the evidence is somewhat indefinite, though it appears certain that the Brandon boy was larger; and some testimony went to show that he was double the size of Brown. The appellants and Brown were companions. While Brandon was assaulting Brown and had him down upon the floor, he called to the appellant Frank Pinkerton to prill him off. The language used is in dispute, some witnesses saying that he added, “Pull the son of a bitch off.” It is clear that, when Frank Pinkerton started to comply with this request, Bostic, the deceased, entered the controversy, and a quarrel took place between him and the appellant, Frank Pinkerton. All that was said is not disclosed, and various versions are given by different witnesses. Some of the state’s witnesses say that, when the appellant Frank Pinkerton failed to desist or protested against the interference of the deceased, the latter said, “You heard me, Frank; let him alone.” Frank replied, “Shoot, you Ood damn son of a bitch; you are faded,” and that the deceased said, “Shoot, hell; I have nothing to shoot with;” that the brother of the deceased pulled off his coat and started to enter the fight, stating that he could whip any “damn thing” out there. The deceased said, “Let him alone; don’t start any trouble.” During the quarrel between Frank Pinkerton and' deceased the appellant Bill Pinkerton, according to some of the witnesses, interposed with the expression, “Hell, if you want anything, we are raring to go;” that Bill was hit by the deceased and backed off, and Frank hit the deceased with his fist. It was nighttime. The deceased was angry. The state proved that the appellants, after the fight, had no bruises upon them; that the deceased, in ordering Frank Pinkerton to desist in his interference, used an oath towards him.

The enumeration in the statute of matters constituting adequate cause is not exclusive of others (Penal Code, art. 1130), and where there is evidence of existence of one of the statutory causes, as in the case before us, and there are other facts, that should be considered in connection therewith on the issue of manslaughter, a charge which ignores these other facts is generally regarded as inadequate when to it there are appropriate exceptions. Articles 1131 and 1132, Vernon’s Texas Crim. Statutes, vol. 1; article 1138, Vernon’s, Texas Penal Code; Childers v. State, 33 Tex. Cr. R. 511, 27 S. W. 133; Orman v. State, 24 Tex. App. 503, 6 S. W. 544; Brown v. State, 54 Tex. Cr. R. 127, 112 S. W. 80.

Omitting a detailed discussion of the authorities, we are of opinion that under the evidence the court was not warranted in confining the jury in passing upon the issue of manslaughter to the single phase of the testimony which related to a blow producing pain or bloodshed. It was a matter of inference only that the blow produced pain or bloodshed. Assuming, however, that the jury drew such inference, there were other facts which might have accentuated its effect upon their minds in determining whether the appellants were influenced by passion rendering their minds incapable of cool reflection.

The language used by the counsel for the state in argument doubtless will not be repeated upon another trial.

The error of the court in the charge on manslaughter, in our opinion, requires a reversal of the judgment, and it is so ordered. I 
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