
    TALAMANTES v. STATE.
    (No. 9345.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.)
    1. Homicide &wkey;>300(8)~Evidence held to warrant submission of- issue of mutual combat.
    Evidence, as to ill feeling between defendant and deceased, occurrences just before killing, and purported voluntary statement of defendant, held to warrant submission of issue of mutual combat.
    2. Homicide <&wkey;244(2) — Proof of • purported voluntary statement, indicating difficulty was one of mutual combat, held not to foreclose question of seif-defense.
    State’s introduction of wbat purported to be a voluntary statement by defendant to effect that difficulty was one of mutual combat, held not to foreclose question of self-defense, where other evidence was such as to warrant conclusion that deceased was aggressor, and that killing was not result of mutual combat, but altogether in self-defense.
    3. Homicide <&wkey;300(8) — Evidence held to require submission of issue of self-defense.
    Evidence, as to ill feeling between defendant and deceased, and threats against defendant, and conduct of parties just before killing, held to require submission of issue of self-defense.
    4. Homicide <&wkey;282-‘-Whether killing is murder or manslaughter depends on condition of mind and is not question of law in any event.
    Whether killing is murder or manslaughter is not question of law in any event, but one of fact dependent on condition of mind, whether killing occurs in mutual combat or otherwise.
    ig^wFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
    
      5. Homicide <&wkey;309(4) — Failure to submit issue, whether .killing was murder or manslaughter, held error.
    Failure to submit issue, whether killing was murder or manslaughter, held error, notwithstanding purported voluntary statement of defendant that difficulty was one of mutual combat.
    <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    ■ Commissioners’ Decision.
    Appeal from District Court, El Paso County ; W. D. Howe, Judge.
    Nasario Talamantes was convicted of murder, and he appeals.
    Reversed, and cause remanded.
    E. B. Elfers, of El Paso, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of El Paso county for the offense of murder and his punishment assessed at confinement in the penitentiary for a term of five years.

The testimony for the state in this case shows that the appellant and deceased had had some differences over a Mexican woman, and that the deceased had made threats against the life of the appellant. They met at a church on the day of the homicide; the deceased being in a wagon with his brother and his brother’s wife and Children. The deceased was armed with a knife described in the testimony as being about 15 inches long. On meeting at the church, they had some conversation, the substance of which is not disclosed by the testimony. The state’s witness testifies that when they left the wagon they ran off toward the scene where the killing occurred, which scene was not in sight of the witness. The deceased’s sister-in-law, in describing their actions when they left the wagon, testified:

“When they went off, Talamantes was ahead, and Santos was following him, Talamantes was going by -the wagon and Santos was on top, and I was fixing the children. I "was scared, I saw them running off. They were running fast, Santos was running after Talamantes.”

Another witness, who saw the parties directly at the scene of the killing, testified that, immediately b'efor.e he heard the first shot fired, he heard the deceased tell the defendant to come on.

The state introduced in evidence the purported voluntary statement of the appellant in which, among other things, he stated that when the deceased was at the wagon, deceased said to him that, “You should be ashamed of yourself” and got off of the wagon, and the defendant told the deceased that he was not afraid of him, and defendant left the wagon, but before doing .so agreed to meet in the road and fight it out. The voluntary statement further shows that, at the scene of the killing, the deceased had the knife, and the appellant his gun, and that the deceased cut at the appellant and kept pursuing him with the knife, and that the defendant shot him four times.

The record discloses that the appellant is a Mexican, and that the' warning given him which was contained in the voluntary statement had to be translated into Spanish, and the witness who translated it to him testified that he tried to explain to him just what the preliminary portion of said statement contained. And his testimony further shows that he translated it to him in Spanish, and that the appellant said that it was his voluntary statement. Under this condition of the record, the court properly submitted the issue of mutual combat, but appellant’s chief complaint is that he refused to submit the converse of the issue of mutual combat. In other words, appellant complains that the court did not instruct the jury that if the parties did not engage in a mutual combat that then the appellant would have had the right to have acted in self-defense in killing the deceased.

Appellant excepted to the court’s charge on account of its failure to submit the law of self-defense and offered a special charge submitting this issue. The special charge offered was not correct perhaps, but it, together with the exception to the court’s charge, was entirely sufficient to suggest to the court the propriety of submitting appellant’s theory of the case to the jury.

We do not understand that simply because the state offers in evidence what purports to be a voluntary statement of the appellant to the effect that the difficulty was one of mutual combat that this forecloses this question, when there is other evidence in the record from which the jury would be warranted in concluding that the deceased was the aggressor throughout the difficulty, and that the killing was not upon mutual combat, but altogether in self-defense. As above stated, it was entirely proper for the court to submit the issue of mutual .combat but, in view of the testimony as above detailed, it occurs to us that the appellant had the right to have the jury properly instructed on his theory of the case. The jury may or may not have believed that the appellant actually made the alleged voluntary confession introduced in evidence. The mere fact that one witness testified that the confession was made would not in our opinion justify the court in concluding, as a matter of law, that this witness spoke the truth. It was, in our judgment, under the facts of this case, a question of fact to be properly submitted to the jury for their determination, and the jury should have been pertinently instructed that in the event they should find that the killing did not occur while the parties were engaged in a mutual combat that then the appellant would' have the right to act in his own proper self-defense. Lee v. State, 21 Tex. App. 241, 17 S. W. 425; Christian v. State, 46 Tex. Cr. R. 47, 79 S. W. 562.

We are also of the opinion that the court erred in not submitting to the jury the issue of manslaughter. Whether the killing was murder or manslaughter depends entirely upon the facts introduced upon the trial of the case. It is not a matter of law in any event. The condition of the mind is not fixed by law, but must be ascertained from the facts adduced in evidence. Whether the killing occurs in mutual combat or otherwise, the nature, character, or degree of such homicide will depend upon the condition of the mind of thé slayer, and this must be ascertained from the circumstances of the particular case, and in this ease, we are not prepared to say that this question should not have been submitted as an issue of fact to the jury for its determination. Foreman v. State, 33 Tex. Cr. R. 272, 26 S. W. 212.

For the reasons above stated, it is our opinion that the judgment should be 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.  