
    THOMPSON v. STATE.
    (No. 10350.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1920.)
    1. Homicide <@=>157(4) — Evidence of fight with doceased eight or ten months before homicide held admissible to show malice.
    In prosecution for manslaughter, evidence that defendant had been indicted and paid fine eight or ten months before homicide for fighting with deceased held, admissible on issue of malice.
    2. Criminal law @=>789(5)— Charge to acquit of manslaughter if there were threats or defendant acted in self-defense, omitting element of reasonable doubt, held error.
    In prosecution for manslaughter, charge to acquit if they believed there were threats, or that defendant acted in self-defense, held error in not allowing acquittal if there was reasonable doubt as to whether such conditions existed.
    Commissioners’ Decision.
    Appeal- from District Court, Shelby County ; R. T, Brown, Judge.
    Ed Thompson was ■ convicted of manslaughter, and he appeals.
    Reversed and remanded. •
    Sandeis & Sanders, of Center, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted in the district court of Shelby county for the offense of manslaughter, and his punishment assessed at two years in the penitentiary. This is the second appeal of this case to this court. The first appeal is reported in 101 Tex. Or. R. 587, 276 S. W. 699, where a sufficient statement of the facts will be found.

In bill of exception No. 2 complaint is made to the action of the court: in permitting the state, on cross-examination of the witness, H. A. Thompson, and over the objection of 'the appellant, to prove that the appellant had been indicted and had paid a tine for fighting about eight or ten months prior to the homicide. The appellant objected to said testimony because he had made no application for a suspended sentence, said offense inquired about did not involve moral turpitude, and said action on the part of the state was an attempt to prove an extraneous offense. The court, in qualifying this bill, states that the fight or difficulty in question was between the appellant and the deceased, Blount, and testimony concerning same was admitted on the issue of malice. There is no merit in the objection made, and we think the testimony was clearly admissible for the purpose stated in the qualification to the bill. Taylor v. State, 14 Tex. App. 840; Penton v. State, 67 Tex. Cr. R. 448, 149 S. W. 190; Thompson v. State, 79 Tex. Cr. R. 478, 187 S. W. 204.

The evidence in the record raised the , issues of threats and self-defense, and the court charged thereon in paragraphs 10, 11, 12, and 13 of his general charge, to which portions of said charge the appellant urged timely objections for the reason that the court, in submitting these defensive theories, nowhere charged in connection therewith or in relation thereto, the doctrine of reasonable doubt, but charged the jury to the effect that if they believed or found from the evidence that said facts existed to acquit the appellant. The appellant contends that the court, in framing said portions of the charge, placed an undue burden upon him, and that the jury should have been charged that if they had a reasonable doubt thereof to acquit him. We think the criticism urged to said portions of the charge is well founded, and that the court erred in failing to follow the doctrine laid down by this court in the cases of Regittano v. State, 96 Tex. Cr. R. 477, 257 S. W. 906; Hathcock v. State, 103 Tex. Cr. R. 518, 281 S. W. 859; Tucker v. State, 103 Tex. Cr. R. 598, 281 S. W. 870; Ford v. State (Tex. Cr. App.) 285 S. W. 614.

For the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

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. 
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