
    McCullough v. STATE.
    (Court of Criminal Appeals of Texas.
    April 26, 1911.)
    1. Homicide (§§ 17, 308) — Murder—Homicide in Commission of Another Offense.
    Under Pen. Code 1895, art. 48, providing' that, if one intending to commit a felony shall, by mistake or accident, do an act which, if voluntarily done, would be a felony, he shall be-punished for the offense actually committed, where a party, actuated by express malice, attempts to kill another, and kills a third per-son, the offense.is murder in the second degree; and hence, where such an issue was raised in the trial of one accused of uxoricide, a failure to instruct thereon was erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 23, 644; Dec. Dig. §§ 17, 308.]
    2. Criminal Law (§ 829) — Trial—Instructions.
    Where proper instructions covering an is-sue in a homicide case have been given, others-to the same purport may be refused.
    [Ed. Note. — For other cases, see Criminal-Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    3. Homicide (§ 125) — Excusable Homicide-—Accidental Killing-.
    The accidental killing of a third person-by one acting in self-defense is justifiable homi--cide.
    [Ed. Note. — For other cases, see Homieider Cent. Dig. § 190; Dec. Dig. § 125.]
    4. Homicide (§ 60) — “Manslaughter.”
    Where one, under the influence of sudden passion arising from some adequate cause, and; not actuated by malice, while not acting in self-defense, and intending to kill another, kills-a different person, the offense is manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 84; Dec. Dig. § 60.
    
    For other definitions, see Words and Phrases,vol. 5, pp. 4338-4342; vol. 8, p. 7715.]
    Appeal from District Court, Fayette County ; B. G. Neighbors, Special Judge.
    Manuel (Bud) McCullough was convicted-of murder, and appeals.
    Reversed and remanded.
    Edward H. Moss, for appellant. C. E.Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

The jury gave appellant a life sentence for the murder of his-wife.

The sister-in-law of appellant, Ollie Jami-son, was the main state witness. In brief,she testified that appellant and his wife had been having trouble, and the night preceding the homicide in the early morning deceased, had spent the night at her mother’s. Appellant spent the night at his home a short distance away. The morning of the homicide-he went after his wife, carrying a shotgun. She finally accompanied him in the direction of home. En route they were met by Ollie Jamison, sister of the deceased. This witness testified that her sister was crying, stating that appellant had informed her he intended to kill her. Jamison interceded, and1 the wife took refuge behind Jamison, and) Jamison testifies that appellant shot his wife over her head; that witness then ran, and appellant fired at her twice, missing her the first shot, blit striking her in the 'arm the second shot. The wound was in front, practically tearing away the front and left side of the head of deceased. The wound, however, did not break the tissues of the brain. Deceased lived something like two months, and died. It is deemed unnecessary to go into a further detailed statement of the state’s side of the case, as the questions to be discussed are not determined from the state’s evidence.

Appellant took the stand in his own behalf, and contradicted Jamison as to the events transpiring at the time of the homicide, denying almost, if not entirely, the testimony of Jamison as to the condition of the parties up to and at the time of the firing of the shots. He states Jamison was armed with a rock and pocket knife, and sought to assault him; that, resisting this assault, he shot at her, and accidentally shot his wife; that he had no intention of shooting his wife. The state’s theory was, further, that Jami-son did not have the rock or knife.

1. The court submitted, in a general way, and' perhaps sufficiently, the theory of accidental killing, viewed from the standpoint of self-defense against the attack made upon appellant by Jamison. The substance of this charge was that if Jamison had made an assault upon him, and he shot at her in self-defense, the killing of his wife would not constitute him guilty, and the jury should acquit. Appellant asked a charge, which was refused. Without stating the charge in full, it sought to submit to the jury the issue that if appellant shot his wife, and had no intent to do so, but that he was actuated by express malice in attempting to kill Ollie Jamison, and, failing to kill her, accidentally killed his wife, the homicide would be of no higher degree than murdei in the second degree. Under appellant’s evidence, this charge ought to have been given.

Article’48 of the Penal Code of 1895 provides as follows: “If one intending to commit a felony, and in the act of preparing for or executing the same, shall through mistake or accident do another act which, if voluntarily done, would be a felony, he shall receive the punishment affixed by law to the offense actually committed.” It has been universally held in this state, under this statute, that if a party, attempting to kill another, actuated by express malice toward the party intended to be killed, accidentally kills a third party, the offense would be murder in the second degree. Ferrell v. State, 43 Tex. 503; Clark v. State, 19 Tex. App. 495; McCoy v. State, 25 Tex. 33, 78 Am. Dec. 520; Angell v. State, 36 Tex. 542, 14 Am. Rep. 380; Taylor v. State, 3 Tex. App. 387; Halbert v. State, 3 Tex. App. 656; McConnell v. State, 13 Tex. App. 390; Musick v. State, 21 Tex. App. 69, 18 S. W. 95; Breedlove v. State, 26 Tex. App. 445, 9 S. W. 768; Richards v. State, 35 Tex. Cr. R. 38, 30 S. W. 805; Smith v. State, 95 S. W. 1057; Carter v. State, 30 Tex. App. 551, 17 S. W. 1102, 28 Am. St. Rep. 944; Honeycutt v. State, 42 Tex. Cr. R. 129, 57 S. W. 806, 96 Am. St. Rep. 797; Reed v. State, 11 Tex. App. 509, 40 Am. Rep. 795. For collation of other authorities, see Honeycutt v. State, supra. These are a sufficient number of cases to cite in * support of the above proposition. There have been no authorities to the contrary.

If appellant shot at Ollie Jamison with either his express or implied malice, and killed his wife without intending to kill her, his offense would be murder in the second degree. The court failed to charge this view of the law, and such failure is necessarily reversible error. The court may not have believed any of the testimony, except Jami-son’s ; but it is the province of the jury to solve issues of fact under appropriate instructions.

2. Appellant requested an instruction submitting the issue of justifiable homicide, if he shot at Ollie Jamison in self-defense and accidentally killed his wife. This charge was refused. This was an issue in the ease; but we are of opinion the court sufficiently submitted this issue, and, that being the case, it was not error to refuse to repeat the charge. The authorities are without dissent, so far as we are aware, that the accidental killing of a third party by the accused, acting in self-defense, would constitute justifiable homicide. This is decided in Ferrell v. State, 43 Tex. 503, Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165, and Clark v. State, 19 Tex. App. 495. This conclusion would be an inevitable result from the wording of article 48 of the Penal Code already quoted.

While not necessary to the decision of this case, it may be well enough to say, further, that where the killing is an unintentional homicide of a different person from the one intended, but where the slayer is not actuated by malice, nor is acting in self-defense, but while the mind is under the immediate influence of sudden passion arising from adequate cause, such as anger, rage, sudden resentment or terror, rendering his mind incapable of cool reflection the crime would be of no higher grade than manslaughter, because the intended crime would have been manslaughter. The authorities already cited sustain this proposition.

Because of the error on the part of the court refusing to give the special requested instructions and the principle therein announced, this judgment must be reversed and remanded; and it is accordingly so ordered.  