
    ARCHER v. STATE.
    (No. 11432.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    On Motion for Rehearing, May 9, 1928.
    1. Homicide <⅝»282 — “Cooling time” may become issue of fact, where excited state of mind produced by adequate cause is followed by killing while mind is still agitated.
    Where evidence shows excited state of mind produced by adequate cause, followed by killing at a shortly later time but while the mind is still agitated from the former excitement, question of “cooling time” may become an issue of fact for the jury.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cooling Time.]
    2. Homicide <©=>295(21) — Charge that provocation to reduce crime to manslaughter must arise at time of offense held not erroneous ' under evidence.
    In murder prosecution, instruction that provocation must arise at time of commission of crime in order to reduce offense to manslaughter, and that passion must not have been the result of former provocation, held, not erroneous under evidence that shot which killed sister-in'-law was fired during or immediately after tu’ssle with other members of defendant’s family, especially where court instructed jury to consider all facts and circumstances to determine whether defendant was capable of cool reflection.
    
      3. Homicide <g=»339 — Where ail evidence showed former friendly relations between defendant, accused of murder, and deceased, exclusion of testimony showing defendant’s payment of deceased’s doctor bills was not prejudicial.
    Exclusion of testimony as to defendant’s having paid for doctor bills of deceased sister-in-law, offered to show friendly relations between them, held not prejudicial in prosecution for murder of sister-in-law, where all the evidence showed that friendly relations existed and no issue was made on that point.
    4. Homicide <§fe>!42(5) — Proof of name of person killed other than that alleged in indictment for murder held not variance, where deceased was known by two names (Code Cr. Proc. 1925, art. 401).
    Where person hilled was known by two names, fact that different name was shown by evidence from that alleged in indictment held not to constitute variance under Code Cr. Proc. 1925, art. 401, where one of names was alleged in indictment.
    5. Criminal law <§=>1207 — Where alleged murder was committed before act changing minimum penalty, penalty under old law was applicable (Acts 40th Leg. [1927] c. 274; Acts 40th Leg. Sp. Sess. [1927] c. 8).
    Where killing occurred prior to taking effect of Acts 40th Leg. (1927) c. 274, changing punishment for murder and making minimum penalty of two years, trial properly proceeded under old law, in view of Acts 40th Leg. Sp. Sess. (1927) e. 8, which provided that offenses committed prior to the act should be so tried, and such construction is not objectionable as giving the act of the special session retroactive effect.
    Appeal from District Oourt, Palls County; E. M. Dodson, Judge.
    Walter Archer was convicted of murder, and he appeals.
    Affirmed.
    Higgins & Glass, of Marlin, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for murder; punishment, 35 years in the penitentiary.

It may be stated that all the parties connected with this killing were negroes. Several years prior to the homicide appellant had married Viola, a daughter of Nancy Johnson. At the time of the marriage, she had other children younger than Viola; they being a girl, Laura, and a boy, Willie. After appellant and Viola were married, Laura, Willie, Nancy, and Nancy’s mother lived with appellant and his wife. Appellant seemed to have been regarded as the head of the family, and the relations among all the parties were pleasant. A few months before the killing, Willie married, after which Laura, Nancy, and her mother lived with Willie and his wife. Appellant and Viola lived apart but near them on the same farm. Appellant claimed on the trial that Nancy and Willie had made some threats against him, and that the relations between them were not as pleasant as had formerly obtained on the day of the killing, Willie and his wife were away from home, but returned before night. Appellant and his wife spent the day at Nancy’s, and all had supper there together. Shortly after supper, while they were all in the house, some conversation came up between Laura and appellant about a puppy. All of the witnesses save appellant claimed that nothing occurred in this conversation indicating that anybody was angry, or about which there was cause for anybody to become angry. According to the state’s evidence, appellant left the house, picked up a gun which had been left lying on the gallery that afternoon when appellant returned from hunting, and poked the gun in at the door whereupon appellant’s wife went to him and tried to take the gun away from him; that Willie Johnson then said, “What’s the matter with Walter? I will go out and talk to him;” that he stepped out on the porch and was shot by appellant; thereupon Laura went out of the house to her brother, and appellant also shot her. Willie died in a short time from the wound received, but the one inflicted upon Laura at that time did not seem to have been serious, or at least not fatal, for she came back in the house and laid down on the bed. Mr. Burton, the man on whose farm the negroes lived, heard the two shots and went near enough to the house to.hear Willie ask appellant why he shot him, to which appellant replied, “You’ll learn after a while what I shot you for.” Appellant left, taking the gun with him, but returned later. The time intervening between his leaving and return is not definitely fixed. One witness places the time at thirty minutes, and another at an hour and a half. On the trial, appellant claimed that he returned to the house to get his coat, that his wife caught hold of the gun, and that in a scuffle over it the gun was discharged accidentally, the shot striking and killing Laura. In appellant’s confession, introduced by the state, he said nothing about a scuffle with his wife over the gun when he returned to the house. On .the contrary, he said no one saw him when he came back; that he saw Laura through the curtain of the door and shot the girl, thinking at the time he was shooting the “old lady”; that he wanted to kill the “old lady,” but killed Laura instead. Appellant did not call his wife as a witness. His version of the killing is not supported by any evidence save his own. He claimed upon the trial that when he and Laura were talking about the puppy some anger was displayed on the part of Nancy and Willie, and that this was intensified by some of them charging that appellant had said some negro had been writing to Laura; that Willie made a threat against him, and that Nancy ordered him out of the house, threatening to “put him away” if he did not leave immediately; that he left the house, and was followed by Nancy and his wife; that he picked up the gun as he was leaving, but was overtaken by his wife and Nancy as he was trying to get over the fence; that they were holding him and trying to take the gun from him; that while this was going on Willie and Laura came out of the house and were approaching him at the time he shot them. Appellant was on trial for killing Laura.

Appellant complains of the charge on manslaughter, wherein the jury was told that the provocation must arise at the time of the commission of the offense, and that the passion must not have been the result of a former provocation, and that the killing must have been caused by passion arising at the time thereof. It is appellant’s contention that no provocation occurred at the time the last shot was fired which killed Laura. In connection with the foregoing instructions, the court gave the following charge:

“Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty, in determining the adequacy of the provocation, if any, to consider in connection therewith all the facts and circumstances in evidence in the case, and, if you find that, by reason thereof, the defendant’s mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances 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, and so in this case you will consider all the facts and circumstances in evidence, all threats, if any, that were made by Willie Henderson and Nancy Johnson or either of them at the time of the killing or prior thereto, or any attack made by either of these parties, if any, there were made, at the time of the killing or a short time prior thereto, the state of feeling existing between the defendant and Nancy Johnson and Willie Henderson in determining the condition of the defendant’s mind at the time of the alleged killing and the adequacy of the cause, if any, producing such condition.”

It is appellant’s position that application of the instruction quoted was| unavailing unless some provocation occurred at the time when the last Shot was fired. We cannot' agree that the evidence shows nothing to have occurred at the time which might be considered, as a provocation. This whole issue gets into the case solely from appellant’s evidence. He testified that when he left the house because of the threats of Nancy and Willie that his wife was the first one to overtake him while he was trying to get over the fence to leave the place and was tussel-ing with and holding him; that she was joined in this effort by Nancy and while scuffling with the two of them Willie and Laura came upon the scene whereupon he shot them; that he thought they were trying to hold him until Willie got to him. Appellant nowhere claims that either his wife, Nancy, or Willie was armed, or that any one ever struck him, but as far as he goes is to say they were holding and tusseling with him; that he thought if they got his gun they would kill him with it.

In his confession, appellant says:
“I shot the boy first, and I shot the girl after I shot the boy. After the shooting, I left and went to near the river, and turned around after, I was a long ways front the house and when I got back to the house I shot the girl the second time. I was standing in the kitchen and shot her through a curtain door. I could see her through the curtain before I shot her. They did not see me there the second time I shot the girl. I was just standing behind the curtain door and shot through it. I left the gun there at the house. When I shot the second time, I thought I was shooting at the old lady. I wanted to hill her, hut I hilled Laura instead.”

Upon the trial, he claimed that when he returned to the house his wife saw him and engaged in another effort to take the gun from him. Regarding this evidence in the light of his claim that his wife was the first one to engage him in a scuffle over the gun at the time of the first shooting, it might well be regarded as a provocation at the time of the killing of Laura, in connection with which the conduct of the other parties might be considered as authorized in the instruction quoted. Unless the wife’s act upon appellant’s return to the house — conceding it to have occurred as claimed by appellant — could be regarded as some provocation, it is gravely doubtful whether the evidence would call for a charge upon manslaughter at all. If appellant based his complaint-to the charge on the court’s failure to instruct on “cooling' time,” the exceptions do not specifically so state. There is no question but that when the evidence shows an excited state of mind produced by “adequate cause” followed by a killing at a shortly later time, but while the mind is still agitated from the former cause, the question of “cooling time” may become an issue of fact which should be submitted to the jury. The facts in the present record are meager upon appellant’s state of mind when the fatal shot was fired, so meager that we seriously question whether an issue upon cooling time was raised. Upon the point we are referred to Huddleston v. State, 54 Tex. Cr. R. 93, 112 S. W. 64, 130 Am. St. Rep. 875; Thomas v. State, 42 Tex. Cr. R. 386, 56 S. W. 70; Love v. State, 71 Tex. Cr. R. 79, 158 S. W. 525; Ross v. State, 53 Tex. Cr. R. 277, 109 S. W. 194; Garland v. State, 106 Tex. Cr. R. 141, 291 S. W. 244. In each of the cases it will be found that accused had been injured in a previous altercation with deceased and was still suffering therefrom when the killing took place. Upon the doctrine of “cooling time” and the proper charge upon manslaughter in connection therewith, the authorities are sound, but they are not thought to have application in the present case. An exception was directed to paragraph 8 of the charge because it told the jury that it was not enough that the mind was agitated from a “provocation given by some, one other than the party killed.” The court must have responded to this exception by striking the objectionable language from the charge ~as it does not now appear therein. Under appellant’s evidence it would have been improper to have given the charge if originally written as indicated by the exception. Other exceptions were directed at different paragraphs complaining because of a failure to amplify the instructions on manslaughter. We have examined all of them, but are of opinion no error appears in view of the facts and the charge given.

Dr. Hunter testified to the good reputation of appellant, who also sought to prove by the witness that while deceased was living with appellant the latter employed witness to treat deceased, and paid for the medicine and doctor’s fees. This evidence was excluded on objection by the state that it was immaterial. .Appellant insists that it was admissible to show the friendly relations between deceased and appellant. The evidence would at least have tended to show that such relations existed at the time of the transaction inquired about, and, if there had been any issue on that point, the exclusion of the evidence might have been harmful. All the evidence shows that the most friendly relations existed between appellant and deceased during the time she lived with appellant and his wife. Appellant only claims that some ill feeling existed towards him on the part of Willie and Nancy after the parties left appellant’s home and went to live with Willie. This being true, the exclusion of the evidence was not such harmful error as calls for reversal.

There is no merit in appellant’s claim of variance in the name of deceased (Uaura Johnson) as alleged in the indictment and the proof. The evidence shows that she went by the name of Laura Johnson and Luela Moore. When the injured party is known by two names, it is sufficient to allege either. Article 401, C. C. P. 1925; Stokes v. State, 46 Tex. Cr. R. 357, 81 S. W. 1213.

Appellant urges that the Act of the Regular Session of the Fortieth Legislature, chapter 274, changed the punishment of murder, making the minimum penalty therefor confinement in the penitentiary for two years, and that this change in the penalty was not affected-by the Act of the Special Session of the Fortieth Legislature, chapter 8, which provided that offenses committed prior to the taking effect of chapter 274 should be tried under the old law. The point insisted upon by appellant is that, to give the act of the special session effect as to the penalty would be retroactive, and therefore the court should have charged that the minimum punishment for murder was two years, although this killing occurred prior to the taking effect of chapter 274. The views of the court as to the effect of the special session act upon chapter 274 of the regular session act of the Fortieth Legislature have been fully expressed in Flores v. State, No. 11369, 4 S. W.(2d) 43 (opinion on rehearing delivered March 28, 1928), and are not in accord with appellant’s contention.

Bills of exception 1, 2, 3, 4, and 5 relate to questions concerning the absence of veniremen. The bills were not stressed in appellant’s brief, but we have nevertheless! examined them. The explanations attached to the several bills by the presiding judge were accepted by appellant, and, considered in connection with the bills, no error is discovered in the ruling of the court with reference to the matters complained of.

All questions presented by appellant have been carefully considered, and we fail to find anything upon which a reversal could properly be predicated.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

The motion for rehearing is filed too late to demand consideration. However, an examination of it has been made, in order to determine whether in the original hearing any meritorious complaint had been overlooked.

•As stated in the original opinion, the facts are not regarded such as would have required a charge on cooling time, and the charge on manslaughter, quoted in the opinion, was sufficient to guard the rights of the appellant. The case of Thomas v. State, 42 Tex. Cr. R. 386, 56 S. W. 70, especially stressed by the appellant, is one in which in a prior assault the deceased had inflicted upon the accused a serious wound with a knife causing pain and bloodshed. This presenting a matter which was declared by law to be adequate cause, the refusal to charge on cooling time, while raised in a somewhat indefinite manner by a special charge, was regarded by the court under the facts of the case of such importance as to constitute a ground for reversal. A lack of analogy of that ease with the present seems clear. It may be added that since the decision of the Thomas Case, supra (which was rendered in January, 1909), the statutory law governing the charge of the court had undergone material variation. At that time the statute read thus:

“Whenever it appears by the record in any criminal action .upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall he reversed: Provided, the error is
excepted to at the timé of the trial.” C. C. P. 1895, art. 723.

The corresponding article (article 666, C. C. P. 1925) declares that:

“The judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.”

The criticism of the sixteenth paragraph of the court’s charge, in which the jury was told in substance that if the appellant, in shooting at Nancy Johnson, not in self-defense, nor under circumstances reducing the offense to manslaughter, but acting upon malice aforethought, shot and killed Laura Johnson, his offense would be murder, is not sound. In'view of the reference in the paragraph to the charge on self-defense and manslaughter, it was unnecessary to repeat the charge on manslaughter.

For the reasons stated, the request for permission to file the motion for rehearing is denied. 
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