
    SQUYRES v. STATE.
    (No. 6417.)
    (Court of Criminal Appeals of Texas.
    Feb. 8, 1922.
    Rehearing Granted May 3, 1922.
    State’s Rehearing Denied dune 21, 1922.)
    1. Homicide <©=>282 — Evidence .held such as to require submission of issue of murder to the jury.
    Evidence held such that it would have been an unwarranted invasion of the jury’s province to have withdrawn from their consideration the issue of murder.
    2. Homicide <©=>39 — To reduce homicide to manslaughter, the act must be upon passion produced by adequate cause.
    Adequate cause for passion must not only be shown, but the act must be upon the passion, before a homicide can be manslaughter.
    3. Homicide <©=>295(1) — General instruction on adequate cause, instead of limiting it to deceased’s insulting conduct toward defendant’s wife, held not prejudicial.
    An objection that the court ought not to have explained “adequate cause” generally, but should have limited the jury solely to the question of adequate cause based upon insulting conduct toward defendant’s wife, held not well taken, where the court told the jury that insulting conduct toward the wife of one accused of homicide would be adequate cause, so that such charge, taken in connction with the entire charge, was not confusing and not harmful.
    4. Criminal law <3=829(21) — Refusal of requested charge on adequate cause reducing to manslaughter held not error where substantially covered by charge given.
    It was not error to refuse a requested charge on manslaughter that, if the defendant was informed and believed that the deceased had been guilty of insulting words and conduct toward defendant’s wife, the same constituted adequate cause as that term is used in law, and that, upon and after receiving such information, defendant was under no duty to seek deceased and ask for an explanation or give deceased an opportunity of explaining such words and conduct, but, on the contrary, if, on their first meeting, defendant, acting upon such information and belief and under the influence of anger, rage, resentment, or terror sufficient to render his mind incapable of cool reflection, shot and killed deceased, he would be guilty of no greater offense than manslaughter, where the charge given substantially cov-red the same ground, particularly where the requested charge included another and improper issue.
    5. Criminal law <©=3829(5) — It is not error to refuse a requested charge on the issue of threats, where the matter is sufficiently' covered by charges given.
    It was not error in a murder trial to refuse a special charge requested by defendant on the issue of threats, where his rights in such matter were fully protected by the instructions given.
    6. Homicide <©=>295(2) — Refusing instruction that insulting words or conduct meant such as were insulting to defendant or his wife held not error, where the wife immediately resented deceased’s words.
    Upon an appeal from a conviction of murder, refusing a requested charge that, by insulting words or conduct toward a female relative is meant all such words of deceased toward defendant’s wife as may be insulting to her or to defendant himself, held not error, where the evidence does not raise the issue that the wife did not regard deceased’s conduct as insulting, her testimony being that she immediately resented the words and told deceased that she would inform her husband thereof.
    7. Homicide <©=3341 — Defendant cannot complain of refusal of a charge, where the matter was adequately covered by a still more favorable charge.
    It was not error to refuse defendant’s charge upon what is meant under the law by the first meeting between defendant and deceased after deceased’s insulting words and conduct toward defendant’s wife, where the court had already given in the main charge an instruction thereon which was not subject to complaint and particularly where the charge, by requiring not only that the parties be brought into such proximity as to enable the defendant to act in the premises but also required that they see each1 other, which was more favorable to defendant than the charge refused.
    8. Criminal law <©=3923(3) — That a juror was an alien held not ground for new trial, where It was not alleged that he was other than fair and impartial, and no injury was shown.
    Because a juror, who had answered on his voir dire that he was a qualified voter and householder, had merely declared his intention and was an alien and his alienage, had it been. known at the time of his examination, would have been cause for challenge, is not ground for new trial after conviction of murder, where no question is raised but that the juror was fair and impartial, and no injury is sought to be shown by reason of his having served.
    On Motion for Rehearing.
    9. Homicide <©=>271 — Whether defendant was informed of deceased’s insulting words to defendant’s wife and whether his mind was inflamed thereby and the homicide occurred at first meeting held jury questions.
    Whether defendant convicted of murder was informed of the insulting words and conduct of the deceased toward defendant’s wife, and whether thereby his mind was inflamed to a degree rendering it incapable of cool reflection and whether the homicide took place upon the first meeting held questions of fact for the jury.
    10. Homicide <©=3271 — Evidence held such as to require instruction on the law of murder.
    In a prosecution for murder, where defendant claimed the act was done through passion induced by the insulting words and conduct of deceased toward defendant’s wife, evidence held such that the trial court would not have been warranted in refraining from instructing the jury on the law of murder.
    11. Homicide <©=>295(1) — Instruction conveying idea that provocation by deceased’s insulting words to defendant’s female relative must arise at time of offense is reversible error.
    By the terms of Vernon’s Ann. Pen. Code 1916, art. 1133, it must appear that the killing took place immediately upon the happening of the insulting conduct or uttering of the insulting words toward a female relative of defendant’s, or so soon thereafter as the party killing may meet the party killed after being informed of such insults, to reduce the crime to manslaughter, and an instruction containing language such as to confuse the jury and lead them to believe that the provocation must arise at the time of the commission of the offense, constitutes reversible error.
    12. Homicide <©=>271 — Whether insulting words to defendant’s female relative were adequate cause is not a jury question, but it is for them to determine whether defendant was informed thereof.
    Whether insulting words or conduct by deceased toward a female relative of defendant were adequate cause is not a jury question but it was their office to determine whether the appellant had been informed of the insulting words or conduct by the deceased, and if he believed the information to be true, then adequate cause existed as a matter of law.
    13. Homicide <©=>295(1) — Charges should be limited to issues arising upon trial.
    In a prosecution for murder, in which the accused, by his exceptions to the charge and special charges, affirms and insists that he depends upon no other matter to reduce the grade of homicide than insulting words or conduct to a female relative, and the evidence suggests* no other, the court should frame its charge in accord with that view, thus limiting the charges to the issues arising upon trial.
    On Second Motion for Rehearing.
    14. Homicide <S=3295(I) — Where existence of statutory adequate cause is undisputed, the court should affirmatively instruct the jury to decide only whether homicide resulted from passion or from a cause making it murder.
    When there is no dispute in the record as to the existence of one of the adequate causes named in the statute, the trial court should affirmatively instruct the jury, if such cause existed, the jury were called upon to decide only whether the homicide resulted from passion arising therefrom or resulted from such other cause which might make the case murder or justifiable homicide.
    15. Homicide <S=>295(I)— General instruction on manslaughter, requiring the killing to. be brought.about by the immediate influence of sudden passion, held reversible error.
    Testimony of the wife of defendant appellant held to present without dispute the existence of an adequate cause, consisting of insulting words and conduct toward her by deceased and the fact that it was some time after information thereof was conveyed to the defendant that the homicide occurred made the giving in the charge what was the original statutory definition, prior to the enactment of Yernon’s Ann. Pen. Code 1916, art. 1133, which was confusing, in that it stated that manslaughter is a killing brought about by .the immediate influence of sudden passion, reversible error.
    16. Homicide <g=w295(1) — Failure to instruct without confusing statements on insulting words by deceased to defendant’s wife, and as to the killing taking place at first meeting, held reversible error.
    Under the facts in the record, the jury should be told without confusing statements that, if defendant’s wife communicated to him the fact of insulting words and conduct on the part of deceased and the killing took place at the first meeting of the parties thereafter, and they believed that defendant’s mind was laboring under such passion as to render it incapable of cool reflection, and such passion arose from and grew out of the insulting words and conduct of accused, then a conviction could not be had for a higher grade of homicide than manslaughter, and failure to so instruct is reversible error.
    Appeal from District Court, Shelby County; Chas. L. Brachfield, Judge.
    Prank Squyres was convicted of murder and sentenced to 10 years’ imprisonment, and he appeals.
    Reversed and remanded, on rehearing.
    Davis & Davis, of Center, for appellant.
    J. P. Anderson, Dist. Atty., and Sanders & Sanders, all of Center, and R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for murder. Punishment 10 years in penitentiary.

On December 2,1919, appellant killed John Richards by shooting him with an automatic pistol. The killing occurred at the home of Edward Hammer, a 'brother-in-law of appellant. Appellant, his wife, and the deceased were all practically raised in the same neighborhood. Some 15 years before the homicide deceased and Alice Hammer had been sweethearts and engaged to be married. The engagement was broken off and deceased had married another, with whom he had lived up to about 2 years prior to the homicide, when his wife died. Deceased had not remarried. Some 5 or 6 years after the engagement between Alice Hammer and deceased had been broken, appellant married the said Alice, who was 10 years his senior, appellant being, at the time of the marriage, about 16 years of age. About October 15th appellant and his wife went to visit and spend the night with Edward Hammer, ■where the homicide afterwards occurred. Edward Hammer lived on premises rented from deceased’s mother and in a house about 50 yards from where deceased and his mother lived. While on this visit, appellant’s youngest child was taken ill and among other neighbors who came to offer and render assistance were deceased and his mother. Appellant’s wife claimed that one morning while she was at Edward Hammer’s house deceased came into the room where she was nursing the child and said to her, “I hear you are fixing to go to Louisiana”; that, upon being informed by her that this was true, deceased told her he wished she would give up appellant and stay there and that he would take care of her all her life. She says she informed deceased she did not care anything about him; whereupon he took hold of her arm and said: “You let me love you once, and you will care something for me;” whereupon she told him she was going to tell appellant; that deceased replied it would not do any good as he was going to get him out of the way; that deceased then left.

The state controverted the issue that deceased was present on the occasion when appellant’s wife claimed this conduct occurred, and introduced evidence for the purpose of attempting to show that he was not present at that time. Appellant’s wife made no report of the occurrence to her husband at the time, nor to her sister, although the latter was in the kitchen and her husband near the house cutting wood. Shortly after this, appellant and his family moved to Louisiana, where he secured work in the oil field. While looking at a house which they had rented, appellant stated that he would return to Texas and get their household goods. Appellant’s wife objected to this and, when pressed for her reason, claims to have told appellant of 'what had transpired between her and deceased, and that she was afraid for him to come back to Texas for "fear deceased would kill him. Appellant did return to Texas however, boxed up his household goods and shipped them back to Louisiana. While in the same neighborhood where deceased lived preparing his household goods for shipment, appellant claims he did not see deceased. Appellant’s lease on the house he rented in Louisiana was to expire1'on December 1st, and they were short of money. Appellant’s wife had sold her interest in some property to her brother, Tom Hammer, and a note for $300 was due her from him on December 1st. Appellant and his wife claim that they came back to Texas for the purpose of getting this money in order that they might return to Louisiana and make arrangements for other living quarters. On the night of their arrival in Texas, they remained at Tom Hammer’s house. The next morning appellant, his wife, and their children, Tom Hammer’s wife, and several children, got in appellant’s ear and, with appellant driving, went over to visit at Edward Hammer’s, where the homicide occurred.

Deceased had come over to Edward Hammer’s house on the morning in question to get him to help in cutting wood, but a light rain was falling at the time and Edward Hammer promised deceased he would help him as soon as it quit raining. Several other parties were at Edward Hammer’s house at this time. The mail man came by and four or five of them, including deceased, went to the mail box, which was something like 100 yards from Edward Hammer’s house. As appellant came from Tom Hammer’s to Edward Hammer’s place, he passed this mail box where deceased and the other parties were, driving within 10 or 12 feet of them. Four of the parties who were present with deceased at the mail box testified that they saw and recognized appellant as he passed and one of them spoke to him and waved at him, .but without getting a response. Appellant drove past the mail box and stopped his car in front of Edward Hammer’s residence, and he and all of the occupants of the car went into the house. Appellant claims not to have seen deceased as he drove by the mail box. Within a short time deceased and the other parties returned to Edward Hammer’s house and, as deceased stepped up on the gallery, appellant, from inside of the house or about the door, began shooting him,, and he fell upon the gallery. Deceased had a slicker over his shoulders and appellant says just as he stepped on the gallery he dropped his arms down to his sides and, from what his wife had told him, he feared he was going to shoot him, although he admits on cross-examination he believed he would have killed him anyway had not this demonstration been made. All other eyewitnesses disclaimed having seen deceased make any demonstration of any kind, and some of them testified positively that he made none. Immediately after the shooting, appellant walked out of the house past deceased and, in reply to a question as to why he had killed him, said: “He has ruined my life, and I have stood it as long as I can.” The testimony was that, after the shooting, appellant seemed to be excited; that he got in his ear and undertook to turn around and disabled it in some way. He got out of the car and went to the home of a- relative and attempted to get in touch with the sheriff by telephone. Appellant then went on to town and surrendered to the constable. The deceased was entirely unarmed at the time of the homicide. The record furnishes no motive for the killing other than deceased’s alleged conduct towards appellant’s wife.

Exceptions were reserved to that portion of the court’s charge submitting murder, it being urged that the evidence made out only manslaughter at most. A special charge was requested directing the jury to acquit of murder. It is also contended that a new trial should have been granted because the evidence will not support a murder conviction. These matters are presented in bills of exception 1, 3, 6, and 9, and may be considered together. We believe it would have been an unwarranted invasion of the jury’s province for the court to have withdrawn from their consideration the issue of murder. The jury were warranted in concluding that .appellant saw deceased and passed within 15 feet of him at the mail box. Furthermore, adequate cause for passion must not only be shown, but the act must be upon .the passion before a homicide- can be manslaughter. If the mind be capable of cool reflection, the homicide is murder. All of these questions were for the jury. Pitts v. State, 29 Tex. App. 374, 16 S. W. 189; Gillespie v. State, 53 Tex. Cr. R. 168, 109 S. W. 158; Jones v. State, 47 Tex. Cr. R. 515, 85 S. W. 5; Jones v. State, 33 Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. Rep. 46.

Appellant excepted to subdivision 2 of paragraph 7 of the court’s charge (bill No. 4) and to paragraph 9 (bill No. 5), wherein the court explained to the jury what was meant by adequate cause; the objection being that the court ought not to have explained “adequate cause” generally, but should have limited the jury solely to the question of adequate causé based upon insulting conduct toward appellant’s wife. The court did tell the jury that insulting conduct toward the wife of one accused of homicide would be adequate cause. These portions of the charge excepted to, taken in connection with the entire charge, were proper instructions and could not possibly have confused the jury in any way or been harmful to accused.

The complaint presented in bill No. 7 occurs to us to be an unwarranted criticism of an isolated sentence in one paragraph of the charge. The court told the jury that, by the expression “under the influence of sudden passion,” was meant: “(1) That the act must be directly caused by the passion at the time of the killing.” The criticism is that the effect of the quoted language was to limit the jury to a provocation at the time of the killing. By no sort of construction can we attach that meaning, even to the isolated sentence. It states tersely the proposition that passion must be operating to cause the act resulting in the killing. This is the law. ■

Appellant requested the court to give the following special charge:

“You are charged, as a part of the law of this case, that, if the defendant, Prank Squyres, was informed and believed that the deceased John Richards had been guilty of insulting words and conduct towards the wife of defendant, that the same constituted ‘adequate cause’ as that term is used in law; and that, upon and after receiving such information, the defendant was under no duty or obligation to seek deceased and ask for an explanation of such words and conduct or to give the deceased an opportunity of explaining such words and conduct; but, on the contrary, if, on his first meeting with the deceased, as that term is elsewhere defined- and explained to you, the defendant, acting upon such information and belief, and under the influence of either of the emotions of the mind known as anger, rage, resentment, or terror, sufficient to render his mind incapable of cool reflection, shot and killed the deceased, John Richards, then he would be guilty of no greater grade of offense than manslaughter, regardless of the fact that no explanation was asked and no opportunity given for such explanation.”

The court had already, in his main charge, instructed the jury as follows:

“I charge you that insulting words or conduct to a female relative constitutes adequate cause, provided the killing, if any, took place so soon thereafter as the party hilling may meet with the party killed after having been informed of such insult. In this connection "I charge you that the word ‘meet’ as used herein signifies and means that the- parties must see each other and be brought into such proximity as would enable the defendant to act in the premises. And it is immaterial whether the insult actually occurred, or if it occurred, whether it occurred in the manner or way in which it was related to him, if the party believed them to be true. So if you believe that Prank Squyres was informed that deceased had insulted his wife by words or conduct and believed the same, and that at the time of the killing was the first meeting between him and deceased, keeping in view the definition and, explanation given in this paragraph as to the word ‘meet,’ then that would constitute adequate cause within the meaning of that term.
“(10) If you believe from the evidence beyond a reasonable doubt that the defendant, with a deadly weapon, in a sudden passion arising from an adequate cause, as the same has been hereinbefore explained, and not in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, with intent to kill, did, in the county of Shelby, and state of Texas, on or about the date alleged in the indictment, shoot John Richards with a pistol and thereby kill him, as charged in the indictment, you will find the defendant guilty of manslaughter and assess his . punishment by confinement in the state penitentiary for a term of not less than two nor m'ore than five years. If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty.”

We can see so little difference between the charge as given by the court and that requested by appellant that the necessity for giving the special charge is not apparent to us. The special charge incorporated the idea that appellant was under no duty or obligation to seek deceased and ask for an explanation or to give him an opportunity of explaining his conduct. We have been unable to see why this should be injected into the charge. It is not disclosed by the record that it was in any way contended by the state that appellant was undej: any such duty or obligation. We think the charge, as given by the court, sufficiently guarded the rights of appellant with reference to the issue of manslaughter without the necessity of burdening the jury with the requested charge which was practically to the same effect, but with an improper issue connected therewith.

A special charge was requested on the issue of threats (bill No. 11). We have examined the same in the light of the main charge, and believe the latter fully protected appellant’s rights in so far as the question of threats was involved, and that no error was committed in refusing the special charge upon the same subject.

Appellant requested a special charge which was brought forward in bill of exceptions No. 12 instructing the jury that by “insulting words or conduct towards a female relative is meant all such words of deceased towards the wife of defendant as may be insulting to the wife of defendant or defendant himself.” We believe no error was committed by the court in refusing to give the charge. The evidence does not raise the issue that the wife, in the instant case, did not regard the conduct of deceased as insulting, because her testimony is to the effect that she immediately resented the words and conduct of deceased and told him that she intended to inform her husband thereof. Hence we see no necessity of injecting into the case the issue presented in the special charge.

We think the court committed no error in refusing appellant’s special charge No. 4, as brought forward in bill of exceptions No. 13, upon the subject of what is meant under the law by the first meeting between the parties. The court had already given ia his main charge an instruction upon that subject, of which appellant could have no just ground of complaint. Indeed, in one respect it was more favorable than appellant could have demanded. As we find the charge copied in the record, it requires not only that the parties be brought into such proximity as to enable appellant to act in the premises, but also that “see each other.”

It is made to appear by bill of exceptions No. 16 that A. J. Wigley was one of the jurors. Upon his voir dire examination he answered that he was a qualified voter and a householder. Appellant developed the fact that. Sir. Wigley was born in England. He had served on juries in other felony cases in Texas. Not until after the trial was it discovered that he was not a naturalized citizen. Mr. Wigley declared his intention of becoming a citizen of the United States in March, 1890, but took; no further action to perfect his citizenship. He thought he had done all that was necessary to become a citizen of the United States and of Texas. He had voted since the declaration was made and had served on juries in various courts. It may be conceded that neither appellant nor his counsel knew what the true facts were at the time Mr. Wigley was taken on the jury, and it may also be conceded that they are not chargeable with negligence for not having ascertained these facts prior to accepting him as a juror. The act of Congress, 1910, amended the naturalization laws, and made the declaration of intention filed in 1S90 nonavailable as a basis for filing petition for naturalization. No question is raised by appellant but that the juror Wigley was a fair and impartial juror, and no injury is sought to be shown by reason of his serving on the jury. It is urged that because he was an alien he was a disqualified juror and for that reason alone appellant should have been awarded a new trial. We will not discuss the question at any length, as the decisions of our own courts, both in criminal and civil cases, as well as those in many other jurisdictions, have decided this question adversely to appellant’s contention. If the alienage of the juror had been known at the time he was being examined for jury service, it would have been a cause for challenge, but it is no ground for a new trial, although not discovered until after the termination thereof. Leeper v. State, 29 Tex. App. 63, 14 S. W. 398 (in which three cases cited in appellant’s brief are expressly overruled); Mills v. State (Tex. Cr. App.) 34 S. W. 270; Martinez v. State (Tex. Cr. App.) 57 S. W. 838; Williamson v. State, 36 Tex. Cr. R. 229, 36 S. W. 444; Mays v. State, 36 Tex. Cr. R. 437, 37 S. W. 721;; Bartlett v. State, 82 Tex. Cr. R. 468, 200 S. W. 839; Sutton v. State, 31 Tex. Cr. R. 297, 20 S. W. 564; Watson v. State, 82 Tex. Cr. R. 462, 199 S. W. 1098; St. Louis, B. & M. Ry. Co. v. Broughton (Tex. Civ. App.) 212 S. W. 669; German v. H. & T. C. Ry. (Tex. Civ. App.) 222 S. W. 662 (see many authorities cited in last case); Schuster v. La Londe, 57 Tex. 28. The decisions of other jurisdictions are in accord with our own. We do not cite them all, but in Queenan v. Oklahoma, 11 Okl. 261, 71 Pac. 218, 61 L. R: A. 324, many of them will be found referred to. See, also, Corpus Juris, vol. 16, § 2649.

Our disposition of the foregoing questions renders it unnecessary to notice bill of exceptions No. 15.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

MORROW, P. J.

The evidence, in our judgment, would not justify the failure to submit the issue of murder. Whether the appellant was informed of the insulting words and conduct of the deceased towards the female relative; whether thereby his mind was inflamed to a degree rendering it incapable of cool reflection; whether the homicide took place upon the first meeting, were all questions of fact for solution, not by the court but by the jury. Jones v. State, 33 Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. Rep. 46, in article 1135 of the Penal Code, it is said:

“The jury shall be at liberty to determine in every case whether, under all the circumstances, the insulting words or gestures were the real cause which provoked the killing.”

Instances have arisen in which the conviction of murder has been set aside because the character of the evidence showing that adequate cause existed, that the passion was engendered thereby, and that the homicide took place at the first meeting, was such that no conclusion could be reached other than the true cause of the killing was the passion created by the insulting conduct towards the female relative. Among these are Doss v. State, 43 Tex. Or. R. 551, 67 S. W. 321, to which appellant refers. We do not regard that case as a precedent which would require the trial court in the present instance to have refrained from instructing the jury upon the law of murder.

In failing to respond to appellant’s objections to the main charge on manslaughter and limit the submission of that issue to the only facts which authorized the charge on the law of manslaughter, namely, that of •insulting conduct towards the female relative, we have concluded upon reconsideration, that there was prejudicial error. Appellant did not hear the deceased utter the insulting words, nor did he see his insulting conduct. The homicide did not take place immediately but did take place, according to the theory of the appellant, at the first meeting with the deceased after the appellant had been informed by his wife that the in-suiting words and acts had taken place. Various specific objections were urged against the charge, and hills of exceptions were properly preserved, calling in question the court’s ruling. Special emphasis is laid upon the criticism of the charge wherein the term “sudden passion” is used. Upon this subject, the court gave the usual charge on manslaughter, telling the jury that manslaughter was a voluntary homicide committed under the immediate influence of sudden passion arising from adequate cause; that, by the expression “under the immediate influence of sudden passion,” is meant: (1) That the act must be directly caused by the passion at the time of the killing; (2) the passion intended is either of the emotions of the mind known as rage, anger, sudden resentment, or terror, rendering it incapable of cool reflection.

Objection was also urged to that phase of the charge contained in paragraph (9), which we copy:

“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, 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 the facts and circumstances were sufficient to produce such a 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 in determining the condition of the defendant’s mind at the time of the killing and the adequacy of the cause, if any, producing such condition.”

Appellant insists that, notwithstanding the paragraph of the charge which we have copied in the original opinion, that in response to his objections, the charge should have been amended for the reason that there was but one state of facts relied upon by him to reduce the offense to the grade of manslaughter. Supporting this contention, we are referred to the case of Stewart v. State, 52 Tex. Cr. R. 283, 106 S. W. 6S5. That case was one in which Stewart presented the theory that he killed the deceased at the first meeting because of information received from his wife to the effect that the deceased had been guilty of insulting conduct towards her. A charge, so far as it related to the subject of “sudden passion” not different from that now under consideration, was reviewed and held, in the light of the objections urged, to be prejudicial error, the court using this language:

“Wherever the insulting conduct is relied upon to reduce the killing to manslaughter, and the information is conveyed to the slaying relative, the question is not one of suddenness of passion, but it depends, first, upon the fact that he was so informed; and, second, that at the time of the killing his mind was incapable of cool reflection; that is, the condition of his mind as to its incapacity for cool reflection is not relegated to that portion of the statute which requires it to be sudden, for that only applies where the killing occurs upon the happening of the event. Without going further into this.question, we cite in support of this: Bays v. State, 50 Texas Crim. Rep. 548, 17 Texas Ct. Rep. 981; Banes v. State, 10 Texas Crim. App. 421; Niland v. State, 19 Texas Crim. App. 166; Williams v. State, 24 Texas Crim. App. 637; Richardson v. State, 28 Texas Crim. App. 217; Martin v. State, 40 Texas Crim. Rep. 665; and Whaley v. State, 9 Texas Crim. App. 306.”

Examining some of the cases upon which this conclusion is based, we find that they deal with instances in which not only the idea of “sudden passion” is embraced, but also that in which the idea is conveyed to the jury that the provocation must arise at the time of the commission of the offense. The principles controlling the cases, however, seem not different from those which operate under the present facts. Quoting from one of the earlier cases, namely, Eanes v. State, 10 Tex. App. 445, we reproduce these remarks of Presiding Judge White:

“The general rules with regard to ordinary cases of manslaughter are modified necessarily by our statute in permitting this character of defense. It is expressly provided that ‘insulting words or conduct of the person killed towards a female relative of the party guilty of the homicide’ (Penal Code, art. 597, subdiv. 4) shall be deemed an adequate cause to reduce a homicide from murder to manslaughter. Not only so, but the statute further provides that such cause shall be deemed sufficient if it is made to appear ‘that the killing took place immediately upon the happening of the insulting conduct or the uttering of the insulting words, or so soon thereafter as the party killing may meet with the person killed, after having been informed of such insults.’ Penal Code, art. 598. Thus, it will be seen that one of the principal ingredients or elements of ordinary manslaughter, viz.: ‘That the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation’ (Penal Code, art. 594), is not applicable to a case where the insulting words or conduct were not indulged in in the presence of the slayer, for he may kill on the first meeting after, learning that the provocation, of which he personally knew nothing, had been committed. Up to the time of this first meeting the law prescribes no limit for the subsidence of the passion supposed to be engendered by the information received.”

By the terms of article 1133 of the Penal Code, when the ground stated above is relied upon, it must appear that the killing took place immediately upon the happening of the insulting conduct or the uttering of the insulting words, or so soon thereafter as the party killing may meet the party killed after being informed of such insults. Commenting upon this, the court, in Niland’s Case, 19 Tex. App'. 174, says:

“Thus it will be seen that one of the principal ingredients or elements of ordinary manslaughter, viz.: ‘That the provocation must arise at the time of the commission of the offense and that the passion is not the result of a former provocation,’ is not applicable to a case where the insulting words or conduct were not indulged in in presence of .the slayer.”

Having this in mind, the instructions such as we have quoted from the court’s charge, that is, that he (the accused) must act under the immediate influence of sudden passion ; that the killing must be directly caused by the passion at the time of the homicide; that, if the jury find that the facts and circumstances were sufficient to produce such a state of mind in a person of ordinary temper, have no appropriate relation to the questions to be determined by the jury. As indicated in Stewart’s Oase, supra, the language used is calculated to confuse the jury rather than to lead their minds directly to the question at issue. In a ease where the facts are like those before us, and objections are specifically made to embrace such matters in the charge, they should be eliminated.

In the part of the charge quoted in this opinion, the jury was told to consider all the facts and circumstances in evidence in determining whether the facts and circumstances were sufficient. to produce such state of mind in a person of ordinary temper. The record is bare of any circumstance which would raise the issue of manslaughter, save that of insulting words or conduct. Whether insulting words or conduct were adequate cause is not a question for the jury. It was their office to determine whether the appellant had been informed of the insulting words or conduct by the deceased and, if he believed the information to be true, then adequate cause existed as a matter of law. In Redman’s Case, 52 Tex. Cr. R. 595, 108 S. W. 865, the sole ground of provocation was insulting words or conduct, and an intimation in the charge that there may have been other causes was held erroneous. The court said:

“Appellant insists that said paragraph is erroneous, in that it presents other than insulting words concerning a female relative, whereas there was no evidence suggesting any other provocation than insulting words concerning a female relative of appellant. This criticism is correct.”

The wisdom of addressing the charge in all cases to the issues that arise upon the trial commends itself to all. This has often been emphasized in the decisions of this court dealing with the law on manslaughter, where the only ground of provocation was one of those named in the statute as adequate cause ⅜⅛ a matter of law. See Atta-way v. State, 41 Tex. Cr. R. 395, 55 S. W. 45; Wartham v. State, 41 Tex. Cr. R. 389, 55 S. W. 55; Connell v. State, 45 Tex. Cr. R. 162, 75 S. W. 512; Branch’s Ann. Tex. Penal Code; § 512. In instances in which the accused, by his exceptions to the charge and special charges, affirms and insists that he depends upon no other matter to reduce the grade of homicide than insulting words or conduct to a female .relative, and the evidence suggests no other, the court should frame its charge in accord with that view.

Because of the error pointed out, the rehearing is granted, the affirmance set aside, and the judgment of conviction reversed, and the cause remanded.

On Second Motion for Rehearing.

LATTIMORE, J.

The case is before us upon the state’s motion for rehearing. It is insisted that we erred in directing a reversal of this case because of confusing and contradictory matters appearing in the court’s- charge upon the issue of manslaughter. We are clearly of opinion when there is no dispute in the record as to the existence of one of the adequate causes named in our statute, the trial court should affirmatively instruct the jury that, if such cause existed, the jury were called upon to decide only whether the homicide resulted from passion arising therefrom, or resulted from some other cause which might' make the case murder or justifiable homicide, as the case may be.

In our view of this record the testimony of the wife of appellant presented without dispute the existence of adequate cause, consisting of insulting words and conduct to her by deceased. . Granting the existence of such adequate cause, and also the fact that the homicide did not take place until some time after information thereof was conveyed to the appellant, the giving in the charge of what was the original statutory definition of manslaughter as it existed prior to the enactment of present article 1133, Vernon’s P. C., and as it still is and applicable to most cases of manslaughter, could hardly be other than productive of confusion in the minds of a jury composed of laymen. They were told in the charge that manslaughter is a killing brought about by the immediate influence of sudden passion. The jury were then confronted with the prop- • osition that the accused was told of the insults by his wife and went about his business and did not meet deceased for some time after, at which meeting the killing occurred. It is easy to conceive the condition of perplexity and confusion that might exist in the minds of the jury as they try to reconcile the proposition that appellant was laboring under such passion as to render his mind incapable of cool reflection at the time of the homicide, but same could not reduce the killing to manslaughter unless it was sudden passion.

It seems to us that the question in a case such as the one before us should be submitted in the clearest manner possible, and the jury should be told without confusing statements that, if the wife of appellant communicated to him the fact of insulting words and conduct on the part of deceased and the killing took place at the first meeting of the parties thereafter, and they believed that the mind of the appellant was laboring under such passion as to render it incapable of cool reflection and that such passion arose from and grew out of the in-suiting words and conduct and caused the act of the accused, then a conviction could not be had for a higher grade of homicide than manslaughter. These propositions we believe to be supported by the authorities and to be those announced in our former opinion reversing this case.

Being unable to conclude that any error appears in said judgment of reversal, the state’s motion for rehearing will be overruled. 
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