
    BUTLER v. STATE.
    (No. 11109.)
    Court of Criminal Appeals of Texas.
    Feb. 1, 1928.
    Rehearing Denied March 7, 1928.
    1. Homicide ®=a30®(4)— Evidence of communicated threats by deceased and of attack on defendant held to raise issue of manslaughter.
    In prosecution for murder, evidence of threats by deceased against defendant to third person communicated to defendant, that deceased and others hunted for defendant on day of homicide, and that one of deceased’s companions attacked defendant before the shooting, held to raise issue of manslaughter.
    2. Homicide <§=>300( 12) — Instruction eliminating consideration of joint attack against defendant and prior communicated threats and restricting consideration to acts of deceased or another at time of killing held error.
    In prosecution for murder, instruction restricting jury’s consideration to acts and threats of deceased and his companion against defendant at time of killing held error as eliminating consideration by jury of joint attack against defendant almost immediately before the killing and prior threats by deceased to third persons communicated to defendant which might have constituted adequate cause for homicide.
    3. Homicide <§=>295(1) — Facts showing adequate cause for homicide if collated should be correctly stated in instruction.
    In prosecution for murder, if facts showing adequate cause are collated they should be correctly stated in instruction.
    4. Homicide <2=3300(12) — Instruction in murder prosecution, mentioning single attack whem evidence raised issue of joint attack, held error.
    In prosecution for murder, instruction mentioning single attack on defendant was error, where evidence raised issue of joint attack.
    5. Criminal law <§=>1 120(6) — Bill of exception to exclusion of res gestae statement failing to show proximity of time and place and spontaneity of statement will not be considered.
    Bill of exception to trial court’s refusal to permit witness in murder case to testify to purported res gestae statement of deceased’s brother-in-law, to effect that witness, deceased, and another went out “to get defendant but he beat them to it,” held deficient for failure to show proximity of time and place and spontaneity of statement, and will not be considered.
    6. Criminal law <§=>1092(11) — Qualification of bill of exception in manner to show no error cannot be considered where excepted to.
    Where bill of exceptions to exclusion of testimony was qualified in such manner as to show no error, but qualification was properly excepted to by appellant, Court of Criminal Appeals cannot consider the qualification.
    7. Criminal law <§=>'1092(11) — Bill of exceptions-will be considered without qualification excepted to, where trial court fails to file proper, bill.
    Trial court is under duty to file proper bill of exceptions, and on failure to do so, Court of Criminal Appeals will consider bills without qualification made and to which exceptions were taken to show no error.
    . On'-Motion for Rehearing.
    8. Criminal law <§=>823(10) — Instruction restricting jury’s consideration to acts of specified! persons at time of killing held error, notwithstanding further instruction to consider all facts in case.
    In prosecution for murder, instruction on adequate provocation, restricting jury’s consideration to acts of specified persons and to acts and threats at time of killing, when evidence showed acts and threats by others at other times, was error, though court in same instruction stated that jury must consider all facts and circumstances in case in determining adequacy of provocation.
    Commissioners’ Decision.
    Appeal from District Court, Limestone County; J. R. Bell; Judge.
    Hugh David Butler, alias Hoptoe Butler, was convicted of murder, and he appeals.
    Reversed and remanded.
    Ira Lawley, of Groesbeck, for appellant.
    C. H. Machen, of Mexia, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, murder; penalty, 99 years in the penitentiary.

Appellant killed Lester Bolton. A few days prior to the killing appellant had a fight with Milford Long, brother-in-law of deceased. Appellant introduced evidence of communicated threats made by deceased against bim to a third person when be beard of this fight; also that Milford Long, his brother Ben, and deceased, all three, hunted for appellant on the day of the homicide, found him at a carnival stand, from whence appellant ran to an adjoining stand, pursued by the three, and where he was attacked by Ben Long with a scantling, at which time he shot Ben Long, and almost immediately thereafter shot deceased. The issue of manslaughter was overwhelmingly raised by the evidence.

In charging upon this issue the court said in part:

“In determining the adequacy of the provocation, * * * if you find that by reason of anything deceased did at the time, or by reason of anything deceased and Ben Long did at the time, or by reason of any threats made by deceased, or by Ben Long, made to the defendant at the time,” etc.

This charge restricted the jury’s consideration to acts and threats of Ben Long or deceased “at the time” of the killing. It eliminated a consideration by the jury of a joint attack by the three, or at least the joint action of the three above set out, and also eliminated previous threats made by deceased to third persons and thereafter communicated to appellant.

This charge was unduly restrictive under the facts of this case and has been many times condemned. Brookreson v. State, 92 Tex. Cr. R. 67, 242 S. W. 234; Norris v. State, 42 Tex. Cr. R. 567, 61 S. W. 493; Gant v. State, 55 Tex. Cr. R. 291, 116 S. W. 801.

If the facts showing adequate cause are collated, they should be correctly stated. Wheeler v. State, 54 Tex. Cr. R. 51, 111 S. W. 1022; Branch’s P. C. § 2048. Especially is it error to mention a single attack when the evidence raises the issue of a joint one, and which further restrict the jury’s consideration to matters happening at the very time of the homicide when there are in evidence matters happening prior thereto which might under all the facts in evidence constitute adequate cause. Miles v. State, 18 Tex. App. 170; Branch’s P. C. § 2049. It is always dangerous to give a charge attempting to group the facts showing adequate cause in a manslaughter ease.

A bill of exception appears in the record'to the court’s refusal to permit the witness Molin to testify to a purported res ges-ta statement of Milford Long to the effect that they (meaning himself, Ben Long and deceased) went out there “to get appellant, but he beat them to it.” If the proximity of time and place and such circumstances as showed the spontaneity of this statement had been shown in the bill, it would present a serious question, but the bill is deficient in these respects and will not be considered. It is qualified in such manner as to show no error, but the qualification was properly excepted to by appellant. We again call ⅝11 trial court’s attention to the law which forbids our consideration of a qualification thus excepted to. Rochelle v. State, 107 Tex. Cr. R. 79, 294 S. W. 860; Ariola v. State, 105 Tex. Cr. R. 563, 289 S. W. 385. It is the trial court’s duty to file a proper bill under such circumstances, failing in which we will be forced to consider such bills without the qualifications. We say this in view of another trial and especially in view of the number of bills in the record in this condition, most of which, however, present frivolous matters not worthy of discussion.

The judgment of the trial court is reversed and the 'cause remanded.

PER CURIAM. The foregoing opinion ,of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

The state contends in its motion that we erred in holding the charge on adequate cause too restrictive. The court’s charge on adequate cause is plainly so confusing and restrictive as to be capable of great harm. While same did in words tell the jury that they must consider all the facts and circumstances in the case in determining the adequa'cy of the provocation, yet in immediate connection therewith and as part of the same paragraph the court said:

“ ⅜ * ⅜ And if you find that by reason of anything the deceased did at the time or by reason of anything the deceased and Ben Long did at the time, or by reason of any threat or threats made by the deceased or by said Ben Long made to the defendant, if any, at the time, that the defendant’s mind at the time of the killing was incapable of cool reflection and that said facts and circumstances if any, were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law in this regard.”

When the facts of a case show, as in this one, the presence of other prior facts and circumstances which might cause or contribute to produce the passion, excitement, etc., deemed by our statute to be adequate cause, apd the possible acts of persons other than those named, the court should not in whole or in part restrict the jury’s consideration of same to what occurs at the time, nor to the acts of the specified persons. As stated in the original opinion, threats and acts of said parties at other times and places were in evidence and might be considered by the jury in connection with what occurred at the time, in determining-the question of adequate cause.

The motion for rehearing is overruled. 
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