
    RODRIGUEZ v. STATE.
    (Court of Criminal Appeals of Texas.
    April 2, 1913.)
    1.I-Iomi'ioide (§ 21) — Manslaughter—Assault and Mutual Combat.
    Proof that defendant and a brother of deceased had had a prior difficulty, and that on the night of the homicide deceased approached defendant and said he wished to see him, that a wordy altercation ensued, and that deceased knocked defendant down, and choked and otherwise maltreated him, and that defendant while down got out a knife and inflicted fatal wounds, would not support a conviction of a higher degree of offense than manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 35-41; Dec. Dig. § 21.]
    2. Homicide (§ 309) —Instructions — Manslaughter — “Adequate Cause.”
    In view of the statute making an assault causing pain “adequate cause,” the court in a case where defendant’s testimony shows such adequate cause should instruct that an assault causing pain would in law be adequate cause, and that, if this cause produced such a degree of anger, rage, or resentment as to render the mind incapable of cool reflection, the offense would be of no higher grade than manslaughter, and it is reversible error not to do so.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig.. §§ 649, 650, 652-655; Dec. Dig. § 309.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 181, 182.]
    3. Homicide (§ 309) —Instructions — Defense.
    Where the court in a trial for murder charged on abandonment of the difficulty, evidence on the part of defendant that the fatal wounds were inflicted before abandonment, and none afterward, although he followed deceased and struck him with his hand, required an instruction on defendant’s theory of the case.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    Appeal from District Court, Wilson County; F. G. Chambliss, Judge.
    ’Jose Rodriguez was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    C. A. Cone and J. E. Canfield, both of Flo-resville, for appellant G. E. Lane, Asst. A tty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No.-Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at five years’ confinement in the state penitentiary.

The evidence in this case in our opinion will not sustain a conviction for a higher grade of offense than manslaughter, at least it would be error to fail to define what would be adequate cause to reduce the offense to manslaughter. The testimony as a whole shows that appellant and deceased attended a dance; that appellant and a brother of deceased had had a difficulty a week prior to this time, and on the night of the homicide deceased approached appellant and told him he desired to see him, and they walked off together. A wordy altercation ensued, when deceased knocked appellant down, and got on him, according to appellant, choking him and otherwise maltreating him. While down appellant got out his knife and cut deceased. Deceased was a man 35 years of age, while appellant was a young man only 19 years of age. Our statute provides that an 'assault causing pain is adequate cause, and yet the court did not so instruct the jury. In fact, in no part of Ms charge did the court tell the jury what would be “adequate cause” to reduce the offense to manslaughter. As in our opinion the evidence offered in behalf of the state would not support a higher grade of offense the jury were evidently misled by the failure of the court to define adequate cause. In a case like this, where appellant’s testimony would show statutory adequate cause, the court should instruct the jury that an assault causing pain would in law he adequate cause, and, if this cause produced such a degree of anger, rage, terror, or resentment as to render the mind incapable of cool reflection, the offense would be of no higher grade than manslaughter, and it is reversible error not to do so.

The court also charged on abandonment of the difficulty. This was perhaps called for by the evidence offered in behalf of the state, yet the testimony offered in behalf of appellant would show that no wound was inflicted after the alleged abandonment, and his theory of the case should have been aptly presented. If, as a matter of fact, the fatal wounds were inflicted while deceased had appellant down, and wflen they were separated, deceased retired some eight or ten steps, and appellant pursued him find struck him with his hands only, as appellant testifies, if the fatal wounds were inflicted prior to that time, and no wound inflicted at that time, this theory of the case should be presented also, if the court charges on the state’s theory of abandonment of the difficulty.

The judgment-is reversed and the cause remanded.  