
    TAIT v. STATE.
    (No. 7915.)
    (Court of Criminal Appeals of Texas.
    March 26, 1924.)
    1. Homicide <&wkey;>295(l) — Evidence held to demand instruction on capability for cool reflection.
    In a murder prosecution, evidence held to demand an instruction submitting the question whether defendant’s mind, at the time of firing the first shot, was rendered incapable of cool reflection by anger, rage, or terror, and submitting the question of cooling time with reference to the second shot, though sufficient to support an instruction that, if a second shot was fired after the appearance of danger had ceased, it was not justifiable, but unlawful.
    2. Homicide <&wkey;>295(2) — Charge on adequate cause should be given where court is in doubt.
    When the court is in doubt as to the sufficiency of the evidence of adequate cause and accused’s state of mind, a charge on manslaughter should be given.
    3. Criminal law &wkey;>364(l) — Deceased’s declarations held' admissible as res gestae.
    In a murder prosecution, deceased’s declarations that he was unarmed and had turned around to go back when appellant shot held admissible as res gestse.
    4. Homicide &wkey;3303 — Refusal to charge on defense of property held not error.
    In a prosecution for murdering defendant’s half-brother when he appeared on their mother’s premises in violation of a court order, refusal to charge on the law as to defense of property held not error.
    <§=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Grayson County; Silas Hare, Judge.
    Chas. A. Tait was convicted of murder, ánd appeals.
    Reversed and remanded.
    * Randell & Randell and Head, Dillard, Smith, Maxey & Head, all of Sherman, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of five years.

Appellant shot and killed his half-brother, Pearl Rudasill. Appellant’s mother had been married twice, and he was the offspring of the first marriage. There were three sons by the second marriage. Mrs. Rudasill and her husband, Emanuel Rudasill, were separated. A suit for divorce had been filed and the rights to property in 363 acres of land put in issue and awarded to Mrs. Ruda-sill as her separate property. An injunction had been issued against her husband and his sons forbidding their entering upon the land without the permission of Mrs. Ru-dasill. The deceased and his full brothers— the Rudasill boys — were partisans of their father in the controversy. Appellant sided with his mother. The mother of the appellant resided at his. home where the homicide took place. The deceased, for a short time after the separation, resided with his mother, but,' some time before the homicide, removed to his father’s place. After his removal, he had not spoken to the appellant. The deceased, it seems, had, previous to the homicide, gone onto the premises contrary to the injunction, and had been warned in writing by the attorney for Mrs. Rudasill to refrain from repeating this conduct under threat of a contempt proceeding before the court.

Evidence for the appellant was in substance this: While sitting and reading in one of the rooms, appellant observed the deceased riding horseback and entering the premises through a gate some 50 yards distant. He got his shotgim from a closet, stepped onto the porch, and hollered at the deceased to go back. If the deceased heard the remark, he did not heed it, but took the reins in his left hand and urged his horse forward. - Appellant repeated the words, “Pearl, go back,” and said, “Pearl, you go back, or I will .hurt you.” Deceased said: “You are not game enough to shoot. By God! I can shoot too.” His right arm could not be seen by appellant on account of the horse’s head, but from the motion of the shoulder of deceased appellant believed that he was going to shoot and fired twice. Before firing, he heard his mother say: “Oh, Pearl, don’t shoot,” Appellant got his gun in order that he might protect himself and to prevent trouble, believing that if his brother knew he was armed he would go away.

Appellant’s mother testified that while she was sitting near a window and reading a paper, she saw some one approaching and asked the appellant who it was; that he replied that it was Pearl. Appellant then got his gun, walked on the porch, and told Pearl to go back. She heard no reply, but heard the appellant repeat three times, “Pearl, go back.” She did not see the deceased at the time he was shot, but shortly before she saw him as he trotted his horse towards the house and throw his hand back; that she then \ remarked, “Oh, Pearl, don’t shoot.”

The state introduced the declaration of the deceased to the effect that he was unarmed; that when the appellant told him to go back, he turned around to go back and was shot. Buckshot were used. Two shots were fired about one minute apart. Appellant said:

“When I fired the first shot, I didn’t know whether I hit him or not. I could not say whether before I fired the second shot the mare had wheeled around and Pearl had his side to me. * * * I could not say what time elapsed between the first and second .shots. * * * I shot as quick as I could cock the gun and shoot again. I thought probably I ha<^ missed him the first shot; I didn’t know but that I missed him both shots.”

In connection with the law of self-defense, the learned trial judge' embraced in his charge this paragraph:

“On the other hand, if you find and believe from the evidence that the defendant shot the deceased at the beginning of the difficulty as a means of self-defense, or as a means of defending himself against real or apparent danger, viewed from his standpoint, hut you further find and believe from the evidence, beyond a reasonable doubt, that the defendant shot after all danger to the defendant had ceased, and all appearance of danger had ceased, viewed from defendant’s standpoint, and you further find and believe from the evidence, beyond a reasonable doubt, that such shot so fired, if any, after all danger, real or apparent, had passed, caused or contributed to cause the death of the deceased, then you are instructed that such killing would not be done in his self-defense, but would be unlawful.”

He also gave the conventional charge on the right to continue to shoot as long as the danger appeared. There was no charge on the law of manslaughter. An exception was reserved to its omission, and the matter is brought before this court for review. It is not believed that the paragraph of the charge quoted was without evidence to support it; but we do express the opinion that the issue being in the case, the court should have charged on the law of manslaughter upon the theory of cooling time. Hobbs v. State, 16 Tex. App. 522; Lagrone v. State, 84 Tex. Cr. R. 612, 209 S. W. 411; Anderson v. State, 87 Tex. Cr. R. 242, 221 S. W. 285.

If the appellant first fired in self-defense, but under the excitement of the moment fired again after the danger, real or apparent, had passed, the state of his mind at the time he fired the second shot was an inquiry for the jury. The court, in the paragraph of the charge quoted, informed the jury that if the second shot was fired after the appearance of the'danger had ceased, viewed from appellant’s standpoint, and such shot contributed to the death of the deceased, it was not justifiable but unlawful. It might under the law of cooling time have been unlawful, hut still not murder. The reason, under the evidence, for instructing the jury on the law of manslaughter with reference to the second shot, cannot be better stated than by Judge Willson in the Hobbs Case, supra.

The jury may have believed that the appellant exaggerated the danger, and that he being in full possession of his faculties, and his mind uninfluenced by passion, should have refrained from firing the first shot. It cannot be said with certainty that the facts known to the appellant leading up to the moment of the conflict were not adequate to render his mind incapable of cool reflection. The relations between the deceased and the appellant were unfriendly. Deceased had been forbidden by mandate of the court tocome upon the premises without the permission of his mother. There was evidence that he had disobeyed this command and had been warned not to repeat the transgression. There was also evidence that the appellant, as the deceased approached, warned him to refrain from coming further. There was the exclamation of the old mother, “Oh, don’t shoot, Pearl,” which was heard by the appellant. There was the resentment at the conduct of the deceased and the, apprehension aroused by his manner of approach. Taking these, matters into account, we are not prepared to say that there was no evidence which demanded an instruction to the jury to determine whether in firing the first shot at the deceased, the appellant’s mind was not controlled by the passion of anger, rage, or terror, and thereby rendered incapable of cool reflection. It is a settled practice that when the trial court is in doubt touching the sufficiency of the evidence of adequate cause, and the state of mind of the accused, a charge on manslaughter should be given. Arnwine v. State, 49 Tex. Cr. R. 5, 90 S. W. 39; Thompson v. State, 24 Tex. App. 383, 6 S. W. 296; Steen v. State, 88 Tex. Cr. R. 256, 225 S. W. 529; Lewis v. State, 89 Tex. Cr. R. 345, 231 S. W. 113.

The declarations of the deceased were, we think, properly received under the rule of res gestie.

The court did not err in refusing to charge on the law pertaining to the defense of property.

The judgment is reversed, and the causé remanded.  