
    COOK v. STATE.
    (No. 3790.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Homicide <&wkey;>166 — Evidence—Relation or Parties.
    In a prosecution for manslaughter, where defendant killed his wife and her alleged paramour upon discovering them together, testimony that on the same day the paramour had made statements indicating that he anticipated indulging in sexual intercourse that night was admissible as showing his relations with defendant’s wife.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. &wkey;166.]
    2. Criminal Law <&wkey;1091 — Appeal and Error-Bills op Exception — Evidence.
    A bill complaining of admission of evidence which fails to state grounds of objection thereto does not show error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <&wkey;>1091.]
    3. Criminal Law <&wkey;736 — Evidence—Con-pessions.
    In a prosecution for manslaughter, where the evidence was conflicting as to whether a purported confession was made on proper warning, and whether defendant knew what it contained, it was error to fail to submit both such issues to the jury.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1219,1220, 1221,1701, 1702, 1705, 1716; Dec. Dig. &wkey;736.]
    4. Criminal Law &wkey;>673 — Evidence — Motive.
    In a prosecution against defendant for shooting his wife while in the company of her paramour, who was also shot, the court should have limited the effect of testimony as to the killing of the latter to its consideration as affecting the killing of the wife.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Big. §§ 1597, 1872-1876; Dec. Dig. <&wkey;673.]
    5. Homicide &wkey;»340— Appeal and Error — Harmless Error.
    An exception as to a charge of murder will not be considered where defendant was acquitted of murder and convicted of manslaughter.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. &wkey;340.)
    6. Homicide <&wkey;101, 297 — Instructions—Jus-TIEI CATION.
    Where defendant was convicted of manslaughter for shooting his wife and her paramour while they were in the act of sexual intercourse or preparing therefor, it was reversible error to instruct that defendant was neither justified nor excused, and to refuse to instruct that under such circumstances defendant was entitled to kill both his wife and her seducer.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 131, 611; Dec. Dig. &wkey;101, 297.]
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.
    G. O. Cook was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Virgil R. Parker and Sam S. Beene, both of Ft. Worth, and Henry S. Bishop, of Amarillo, for appellant. C. C. McDonald, Asst. Attjr. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of manslaughter; his punishment being assessed at five -years’ confinement in the penitentiary.

This case, as is usual, has two sides to it. The undisputed facts will show that appellant and his deceased wife had been married something like 12 years at the time of the tragedy, having three living children. It is also a fact that his wife had been going to dance halls and places at night over appellant’s protest, coming home late at night. On this particular occasion the deceased, her two sisters, who were living or boarding at the house of the deceased and appellant, and a relative of the appellant went down town to do a little shopping, and later to attend moving picture shows. After they finished their shopping, the question of choice of picture shows came up, the deceased said she was not going to a moving picture show, that she was going to a dance hall, perhaps designating the Moose dance hall. Her sisters then, one or both of them, suggested that, if she would designate the time of her return home, when they left the picture shows they would call for her. She stated “No,” they would not be able to find her, and that she would get home probably before they did. They reached home about 11 o’clock, or later, accompanied by appellant’s relative, Louis Cook. Appellant asked the young ladies about his wife. They repeated to him, in substance, what had occurred and was said between them, and they supposed she was at home. Appellant became worried and anxious about it, got up, partially dressed himself and put on his overcoat, got his gun — a single-barrel shotgun — and went in quest of his wife. He went a block or such matter. Not seeing or hearing anything, he sat down on the steps of a vacant house not far from the corner of a street. After he had been sitting there something like 30 minutes, his wife, accompanied by Grimes, came in sight. Appellant approached and told them “to run” or “get away”; both expressions are used in the testimony. Not heeding his remark, appellant fired two shots. Grimes and his wife both were kill-, ed. Grimes lived awhile, and made some statements with reference to the transaction. Appellant’s wife was killed instantly. Grimes was shot in the stomach, and the woman in the back of the head. The state’s theory was that, when appellant shot Grimes, his wife ran, and slipped or stumbled and fell on the edge of the sidewalk, and appellant walked to her and shot her in the back of the head. Appellant’s theory was, supported by testimony, that when he saw them approaching Grimes had his arms around his wife, and his wife had her arms around his shoulder or on his shoulder or around his neck, and when they got to a certain point they stopped and embraced each other closely, and as he saw it Grimes had his hand down about the private parts of his wife trying to pull up her dress, and when he reached them he told them to run or get away, and that it took them some time to get themselves apart. They did not obey him. He fired to kill Grimes, and his wife was in such position that the shot struck her; that he did not intend to kill her, but only intended to kill Grimes, and thus the first shot entered the back of her head, from which she died, and the second shot entered Grimes’ stomach. There is quite a lot of testimony in regard to the conduct of the deceased wife with other men. There is also a statement of Grimes introduced called a dying declaration, and also a confession made to the county attorney by the defendant. The substance of the confession was as to the immediate facts when appellant shot Grimes, and that his wife in some way slipped and his gun went off. The dying declaration of Grimes was to the effect that he met deceased, appellant’s wife, at the foot of the steps leading up in the Moose hall, and at her request he was accompanying her home; that she stated to him, substantially, that her relatives, two sisters, and Louis Cook, had failed to come, and as an accommodation to her he was escorting her home. There is quite a lot of testimony showing that these statements were untrue; that he had been with her a great deal that night and had danced with her. His relation to her for quite awhile had been such as to indicate undue familiarity. One of appellant’s daughters, who was something like 11 years of age, testified that she had gone with her mother at nights to different places, and that Grimes would come home with her mother, and that she (the child) would be ahead of them, .and they would get behind her, and she would stop and hear and see them embracing each other, kissing and doing amorous performances of that nature and character. The conduct of the wife was such that appellant had become uneasy and nervous about it, and expostulated about her going out so much at night and coming home so late. On this particular occasion he became outraged, and concluded he would investigate it, with the result of the tragedy.

Appellant offered to prove by Sargent, who was a letter carrier, that in a conversation with other carriers they were discussing matters, and, to use his expression, “joshing one another”; that the letter carriers were supposed to make eight hours a day, and that a man could not make two full trips in eight hours; if he just has time to make one, he will just make one and a piece of a trip; that they call it a trip and a piece; that the boys were joshing one another about making a trip and a piece or getting a trip and a piece, and that Grimes said, “X am going to get two trips to-day and a piece to-night;” that the witness Sargent had never had any trips at night, because there was no letter carrying at night; that the trips and pieces of trip did not apply to anything at night. The object and purpose of this testimony is not stated in the bill. It occurs to the writer that, as the killing occurred that very night, under the circumstances and facts of the case, if this bill of exceptions had been properly reserved to show all these matters, the testimony ought to have gone to the jury for what it was worth as showing the relations, in view of the facts, existing between Grimes and the deceased woman.

Another bill recites that Melton was permitted to detail before the jury a statement made by deceased Grimes after the shooting upon Melton’s arrival at the scene of the tragedy. There are no objections stated or reasons explained in the bill by the defendant why this testimony should not be admitted. It may have been admissible, but, without some reason shown in the bill why it was not admissible, the bill does not show error. No grounds of objection are stated. The same will apply to the next bill with reference to the testimony of F. M. Patten. There are no grounds of objection stated, nor is it sufficiently connected to show why it was not admissible.

The statement, which is called a confession, was introduced over many objections. There was a controversy as to this confession as to how it was obtained, and the testimony in regard to the matter was narrowed down to that for the state by the county attorney, and for the defendant by the defendant. One shows proper warning; the other excludes it. The defendant says he was not warned, and that just after he had been placed in jail the county attorney sent after him and had him brought into his office and told him to make a statement. He says he was not warned, and that the county attorney had it written down, and that he signed it, and it was never read over to him, and he did not really know what he was signing. The court submitted this in the charge from the standpoint only from the want of warning as the only issue growing out of this controversy as to the real facts. Wie are of opinion upon another trial he not only should submit the issue of a warning, but as to the fact the defendant did not dictate the statement or make the statement or know what the statement contained. It was an issue, and defendant was entitled to have his side' of it presented to the jury. The confession, as shown in the statement of facts, was witnessed by several parties, and if the statement was as contended by the state, it would doubtless be admissible, but, if as contended by tbe defendant, it was not admissible. Anything that impairs tbe voluntariness of tbe statement or shows tbe party confessing did not understand what it was, or that be really did not mate it, or that it was written down and be required to sign it, under such circumstances, it would be a matter for tbe jury whether or not they should consider it. Tbe issue was sharply made and sharply drawn. The charge should properly present this matter.

Another ground of exception to the charge was that the court failed to limit the effect of the testimony of the witnesses as to the shooting of Grimes by defendant, and nowhere charges them, either in substance or in effect, that the testimony could be considered only as a circumstance tending to show defendant’s intent and the condition of his mind, etc., at the time he shot Carrie Cook, and for no other purpose. We are of opinion that, as this matter was connected up so closely, and the shooting all occurred almost instantly, the court should have instructed the jury that they could not convict appellant under this indictment for shooting Grimes, and the testimony would be limited to its proper sphere in considering the killing of his wife. This might not be fatal error, but it would be advisable upon another trial to limit the effect of this testimony so the jury would be confined exclusively in their consideration as to the finding of their verdict to the killing of the wife. '

Another ground of exception will not be considered. It was as to the charge on murder. He was acquitted of murder and awarded manslaughter.

The next ground brings the serious question of the case. Appellant’s theory was that the parties were in such position that they were having intercourse or about to do so, and that at the time he shot they were together and had not “broken apart,” as he said. He was entitled to have the jury charged, under those circumstances, that he would not be guilty of violating the law in killing his wife. The court charged the jury, substantially, that even though they should find from the evidence that defendant found Grimes and his (defendant’s) wife in each other’s embrace, and although they should further find and believe that they were about to have carnal intercourse with each other, defendant would be neither justified nor excused for killing his wife, if they should further find and believe from the evidence that the defendant shot at Carrie Cook, and that the defendant did not accidentally kill the said Carrie Cook. Without going into a detailed statement of the matter further, the court’s limitation on the testimony in this respect is not justified under our law. If appellant, catching them in the act of embracing each other, and under the other circumstances unnecessary here to repeat, already detailed, believed they were then in the act of intercourse, or preparing to do so, he had a right to kill. This is statutory, and the court’s limitation of the law that under such circumstances appellant would not have a right to kill is not correct. This court undertook to review that question in Williams v. State, 73 Tex. Cr. R. at page 480, 165 S. W. 583. The writer of this opinion wrote at length in that ease on several questions, the majority of the court filing a concurring opinion, not agreeing in full with the writer, but did agree, and so held, that where the defendant catches the deceased and his wife in such amorous relations, he would be entitled to kill the wife, as well as the seducer of his wife. This law was ignored in the charge of the court. It should have been given, and the jury instructed, if they believed such to be the fact at the time of the killing, as contended by appellant, they should acquit.

Because the court did not charge this aspect of the law, the judgment is reversed, and the cause remanded. 
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