
    BILLINGS v. STATE.
    (No. 9586.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1925.)
    1. Homicide &wkey;>309 (4) — Whether sight of wife in compromising position aroused such rage as to render accused incapable of cool reflection made issue of manslaughter for jury requiring instruction.
    Whether sight of his wife in compromising position with paramour aroused in accused such anger, rage, and resentment as to render him incapable of cool reflection, held question for jury, and court’s refusal to charge on manslaughter was error.
    2. Homicide &wkey;>297 — Charge on justifiable homicide of wife held not warranted.
    In prosecution for murder of wife killed with alleged paramour after finding them in compromising position, charge on justifiable homicide held not authorized under Code Cr. Proc. 1925, art. 1220.
    3. Constitutional law <3=»70(l) — Legislative branch of government alone should deal with matters giving citizens right to kill.
    Right to kill is a matter with which legislative branch of government alone ought to deal, and, when it confides to the citizen a right so important, clear duty of Court of Criminal Appeals is to follow, but not to extend, such legislative declaration beyond class clearly stated in statute.
    4. Homicide <S=»I61 — Husband not justified in killing wife found in adultery.
    Code' Cr. Proc. 1925, art. 1220, does not justify husband in killing wife found in adultery; his right to slay being limited to her paramour.
    5. Homicide <&wkey;l7l(I) — Permitting testimony as to finding of blood on children of accused held improper, where there was no dispute as to physical facts of slaying.
    In murder prosecution where there was no dispute as to physical facts concerning killing of wife and alleged paramour by husband, permitting witness to testify as to noticing blood on faces of children of accused after murder was improper.
    6. Criminal law &wkey;>338(4, 5) — Testimony that deceased had shown witness black marks across her body two weeks before killing held inadmissible.
    Testimony of witness that prior to homicide wife had black eye, and on another occasion had shown witness black marks across her body, held inadmissible, where, there was no legal testimony connecting accused husband with marks.
    Commissioners’ Decision.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Jesse Billings was convicted of murder, and be appeals.
    Reversed and remanded.
    Hogan & Matthews, of San Antonio, for appellant.
    C. M. Chambers, Dist. Atty., and Lamar G. Seeligson, Asst. Dist. Atty., both of San An-' tonio, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for tbe State.
   BERRY, J.

The appellant was convicted in tbe district court of Bexar county for tbe offense of murder, and bis punishment assessed at confinement in tbe penitentiary for life.

Tbe facts show that appellant on tbe 5th day of July, 1924, killed bis wife, Dollie Billings, and at the same time killed her alleged paramour, Harley’ Hollifield. The following statement of the case is taken from tbe appellant’s brief and is conceded by tbe state to be correct:

“He discovered the two together in a front room of his house, according to his testimony in a compromising attitude, whereupon he secured an ax and, without saying a word, attacked them with the ax, beating out the brains of Hollifield on the spot. Dolly Billings escaped from the house fleeing and calling for help — that defendant was going to kill her. Defendant ran after her, cursing her and telling her he was going to kill her. He overtook her and -started back with her to the house. She broke away from him two or three times, but he overtook and caught her. He finally led or dragged her back into the house, when witnesses heard some loud words, a woman’s voice pleading to be spared a blow or blows, and then everything became quiet. Dolly Billings lived several days and died without regaining consciousness. The killing took place about 3 o’clock in the morning of the 5th of July. The defendant, his wife, Harley Hollifield, and one or two others had been spending the day celebrating the Fourth. The parties went for a drive, after which Hollifield, defendant, and his wife returned to defendant’s home about 8 p. m. Upon arriving at his home, he, Dolly Billings, and Harley Hollifield began playing a game of cards known as pitch; that he soon became ill and went and lay down on the bed in a room removed by one from the sitting room where they were playing cards. The room adjoining -the sitting room and between the room where the parties were playing cards and where appellant was lying down was the bedroom of the children. Appellant testified that when he went into the room between 8 and 9 o’clock in the evening he lay across the bed without removing his clothes or ¡his shoes; that he soon went to sleep; that he awoke about 3 o’clock in the morning, and upon getting up observed a light burning in the front room, the light of which he could see by looking through the two intervening doors. His shoes had rubber heels and, without sneaking, he walked to the door of the sitting room and looked in. Hol-lifield was sitting on the far side of the room facing where appellant stood. Dolly Billings, appellant’s wife, was sitting crosswise on Hol-lifield’s lap with her arms around his neck. Hollifield’s right arm was around Dolly Billing’s waist and his left hand was up under her dress. The parties were in a close embrace hugging and kissing. Appellant testified that .he had no gun of any kind, but in the bathroom, which adjoined the room in which he had been sleeping, was an ax which he had used to cut wood at his former residence, but the house he then occupied being equipped with gas he kept the ax in the house to keep it from being stolen. That as soon as he witnessed the scene just described he immediately whirled and went to the bathroom and got the ax. Upon his return to the door Hollifield and Dolly Billings, neither of whom had apparently seen him, had gotten up and were walking in the general direction of the door where he was standing, just to the right of which was a sofa. That as soon as he entered the room Hollifield, and Dolly Billings rushed towards him, and that he began beating'them with the ax. The testimony shows that all of the parties had been drinking during the day of the 4th. Appellant testified that from the time he went to get the ax he has no recollection of what occurred, because he went crazy ma'd at the scene he witnessed. He does not remember which one he struck first, or whether he had killed Hollifield before Dolly Billings ran out of the house. He testified that he could not remember about. Dolly Billitígs running out of the house or his pursuing her, and testified that he did not believe that she ever left the house. One of the state’s witnesses, H. C. Merriman, testified that appellant appeared to be more crazy mad than drunk; that from his actions he appeared to have too good use of himself to be drunk.
“There was a great deal of testimony about domestic troubles between Dolly Billings and appellant and deceased, Harley Hollifield. Appellant, himself, testified that he had considered Harley Hollifield one of his best friends, and that until he witnessed the scene in the home he had never suspected any undue intimacy between his wife and the deceased, Harley Hollifield. The testimony as a whole shows, without dispute, that up to the night of the 4th of July the relation between appellant and deceased, Hollifield, had been friendly almost to the point of intimacy. The theory of the state was that appellant killed his wife, Dolly Billings, on account of malice that he entertained for her, and that he killed Hollifield in order to have a defense of improper conduct. The -appellant’s theory was and is that the killing was justifiable homicide, in that the scene witnessed, the time, and circumstances were such as to cause a reasonable mind to believe the parties had been guilty of adultery or were about to commit the act of adultery. It was appellant’s further contention that if the facts of the case were not such as to constitute justifiable homicide, they were sufficient to raise the issue of manslaughter, and that, under the facts, if appellant were guilty of any degree of culpable homicide, he would not be guilty of a, greater grade than manslaughter. The issue of justifiable homicide was presented by the learned trial judge to satisfaction of appellant, but the court refused to charge on the issue of manslaughter upon the proposition that the appellant was either justified or else was guilty of murder. Proper exception was taken to the court’s failure to charge on manslaughter, and a special charge presenting the issue of manslaughter was presented to the court and by the court refused, to which proper exception was taken.”

The first question that presents itself for consideration is that pertaining to the court’s action in refusing the charge on manslaughter in the case. Our statute defines “manslaughter” to be a voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause and neither excused nor justified by law. By “adequate cause” is meant such a cause as would commonly produce a degree of anger, rage, sudden resentment, or terror in a person of ordinary .temper sufficient to render the mind incapable of cool reflection. The statute goes further and sets out certain things which will as a matter of law be deemed adequate causes. These consist of an assault and battery, adultery of the person killed with the wife of the person killing, under certain circumstances insulting words or conduct of the person killed toward a female relation of the party killing, and a áerious personal conflict under certain conditions. It is a well-known rule of construction in this state that-the causes named in the statute as being adequate are merely illustrative, and it is well settled by the authorities that any cause, whether named in the statute or not, which is calculated to and would reasonably produce a degree of anger, rage, sudden resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, is deemed an adequate cause. It is not necessary, in this case, to decide that the conduct described by appellant in his testimony between the deceased and his wife would be embraced under one of tlie causes expressly named by the statute as being adequate. It is sufficient to say that if the testimony detailed bythe appellant as' tó what he saw transpiring between his wife and Hollifield was sufficient to show that these things might have commonly produced a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, then it was clearly the duty of the court to submit this matter to the jury for its determination. In other words, the jury would have the right, under proper instructions from the court, to pass on the question as to whether the seeing of the things detailed by him produced in his mind such anger, rage, or resentment as rendered him incapable of cool reflection. We think that the question is not open to serious doubt. If his testimony is true, immediately before the killing he saw the deceased, his-wife, sitting across Hollifield’s lap with her arms around his neck, and he saw Hollifield with an arm around his wife’s waist and his left hand up under her dress. He saw the parties in a close embrace, hugging and kissing. To seriously contend that this course of conduct would not arouse in a person of ordinary temper a degree of anger, rage, and resentment sufficient to render his mind incapable -of cool reflection, would be in effect to destroy all of the impulses that actuate men in their everyday relations in life. We repeat that the question is not open to serious doubt. The facts were amply sufficient to raise the issue that it might produce anger, rage, and resentment in any ordinary man, and we cannot agree with the contention of the state that this state of mind wouid exist only against the man Hollifield. On the contrary, we think it clear that it may have been even more intense on appellant’s part toward his wife. Morrison v. State, 39 Tex. Cr. R. 519, 47 S. W. 369; Gregory v. State, 50 Tex. Cr. R. 73, 94 S. W. 1041; Williams v. State, 73 Tex. Cr. R. 480, 165 S. W. 583.

The state contends, however, that in view of the fact that the court charged on justifiable homicide under article 1220, C. O. P., the charge on manslaughter was unnecessary. It is sufficient answer to this contention to say that in our opinion the court should not have charged on justifiable homicide under said article 1220, C. C. P., in this case. We are aware of the fact that the case of Williams v. State, 73 Tex. Cr. R. 480, 165 S. W. 583, and the case of Cook v. State, 78 Tex. Cr. R. 120, 180 S. W. 254, are authority for the court’s action in giving this charge in this case. After a very careful consideration of those cases ahd certain expressions in other cases which seem to support them, we have reached the conclusion that they are clearly wrong. Those cases are an extension of the statute which we are unable to justify or indorse. The right to kill is a matter with which the legislative branch of the government alone ought to deal, and when it confides to the citizen a right so important, it is, we think, the clear duty of this court to follow, but not to extend, such legislative declaration beyond the class clearly stated in the statute. Our great .respect for the wisdom of the eminent judge who wrote the opinions in those cases is such as to make us hesitate to dissent from any view expressed by him. But a careful consideration of the question involved has convinced us beyond question that by enacting article 1220 of the C. O. P. the Legislature did not express the purpose or intend to justify a person in killing his wife when she was 'found in adultery with a man. By its express terms, the right of the husband to slay under those conditions was limited to the man with whom she was found taken in adultery. If under article .1220 of the C. C. P. the Legislature in its wisdom had desired to justify the husband in killing his wife when taken in adultery, it was clearly its province to so declare, and in the absence of a legislative declaration to this effect, this court is without the right or the authority to furnish an accused with any such shield. By no rule of construction known to us would we be justified in extending the statute’s protection to one who kills his wife when by its clear and unequivocal terms it limits the right to the killing of “one taken in the act of adultery with his wife.” So far as the Williams Case, .supra, and the Cook Case, supra, are in conflict with the conclusions herein reached, the same are hereby overruled, and on another trial of this case we think the court should not charge on justifiable homicide under article 1220 of the7 C. C. P.

Prom what has been said, it follows that in our opinion the court should have given a correct charge on the issue of manslaughter, and his refusal to' do so must result in a reversal of the case.

Appellant also complains at the court’s action in permitting the witness Merriman to testify over the objection of the defendant that after the officers had taken the defendant to jail, and after the children of the defendant and deceased had been brought to the home of the witness, in putting the children to bed she noticed they had blood on their faces, hands, and clothes, and that their clothes were covered with blood. We think this testimony should have been excluded. We fail to see from this record how the introduction of this testimony tended to illustrate . any point or solve any question or throw any light upon any matter connected with the proper solution of the case. There was no dispute as to the physical, facts concerning the killing, and, under these conditions, the introduction of this testimony was improper. Section 1855, Branch’s P. O., for full collation pf authorities.

Appellant complains at the court’s action in .permitting the state to prove by the witness Chitwood that on one occasion prior to the killing, she went to the home of the deceased, who was a sister-in-law of the witness, and the deceased had a black eye. This testimony was not admissible. No connection is shown between it and any fact or circumstance under investigation in this case, and it should have been rejected. This same witness was permitted to testify that some two weeks before the homicide the deceased had shown the witness four black marks nearly a foot in length across her body. Statéments made by the deceased, not in the presence of the defendant, as to how she received said bruises, were, of course, hearsay and were properly excluded by the court; but we think the court should have also refused to have permitted the witness to testify to the marks on the deceased unless there was legal testimony connecting the appellant with said marks.

There are many complaints in the record at the conduct of the district attorney in interrogating the various witnesses in the case. In view of. the fact that the case must be reversed for other reasons, we have not deemed it necessary to discuss these matters. We feel impelled to say, however, that the complaints urged present what we believe to be a series of infractions of the rules of procedure that were not conducive to. such a fair and impartial trial as every man is entitled to under the Constitution and laws of this state.

Eor the errors above discussed, it is our opinion that the judgment of the trial court ,must 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. 
      ^=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     