
    PEART v. STATE.
    (No. 8337.)
    (Court of Criminal Appeals of Texas.
    June 18, 1924.
    Rehearing Denied Oct. 29, 1924.)
    1. Criminal law <&wkey;>l09l(ll)— Bill of exceptions in question and answer form not considered.
    Bills of exception in question and answer form cannot be considered.
    2. Criminal law &wkey;>l 114(2) —Bill not presenting surroundings or setting of matter objected to presents nothing for review.
    Bill of exceptions, presenting none of surrounding circumstances or setting of matter objected to, presents nothing for review. •
    3. Criminal law <@=>829< 18) — Refusal of charge on reasonable doubt with respect to' particular matter- held not error, in view of other instructions.
    Where court charged law of presumption of innocence, and applied doctrine of reasonable doubt to entire case, there was no error in refusal of defendant’s charge that burden was on state to prove beyond reasonable doubt that defendant did not act in self-defense against either real danger or what appeared to be danger.
    4. Criminal law <&wkey; 1090(7) — Refusal of continuances not subject of bill of exceptions not considered.
    Where refusal of application for continuances was not subject of bill of exceptions, complaint thereof will not be considered.
    On Motion for Rehearing.
    5. Homicide <&wkey;>!22 — insulting conduct to female relative could not be relied on to reduce offense to manslaughter, where defendant did not then resent it.
    Evidence that defendant had seen deceased drive to home of his daughter, and of his belief that he thought deceased intended to seduce her, could not be relied on as supporting manslaughter, under Pen. Code 1911, art. 1133, where he did not then resent it or attempt to inflict injury on deceased.
    6. Homicide <&wkey;49i— Insulting conduct of deceased to defendant’s wife before divorce held not such as to reduce crime to manslaughter.
    Alleged insulting conduct of deceased towards defendant’s wife, which occurred prior to her divorce from him, held under facts, not such as, under Pen. Code 1911, art. 1133, would reduce crime to manslaughter. ■
    7. Homicide &wkey;>340(3) — Instruction giving jury right to convict only of manslaughter held favorable to defendant.
    Where defendant alleged conduct of deceased towards his daughter and former wife as ground for reducing offense to manslaughter, held that charge which gave jury right to convict only of manslaughter, if they found defendant’s mind to be so inflamed by passion arising from any adequate cause as to render him incapable of cool reflection, was favorable to him.
    Appeal from District Court, Jefferson County ; George C. O’Brien, Judge.
    T. B. Peart was convicted of murder, and he appeals.
    Affirmed.
    Howtb & O’Eiel and Damar Hart, all of Beaumont, for'appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Jefferson county of murder, and a penalty of 99 years in the penitentiary affixed.

This court has a tremendous amount of work, and the ignoring of the rules laid down in the preparation of transcripts, and a failure to place the various documents composing same in the orderly manner prescribed by rule 85 of the rules for district and county courts prescribed by the Supreme Court, and contained in volume 142 S. W. xxiii, greatly multiplies the labor of this court. The transcript in this case does not follow the rule referred to in any particular. Tlie motion for continuance is 'near tlie end of the transcript, and the charge of the court' is about the middle thereof. There is little excuse for confusing transcripts which, when as long as the ■one in this record, adds enormously to the burdens which already greatly tax the powers of this court. Attention is called to this because there seems a growing tendency to carelessness in this regard, and it is hoped that those charged with the duty of preparing transcripts will carefully follow the order prescribed in the rule mentioned.

Appellant and his wife lived together for a number of years, one child, a daughter, being born of their union. Some 15 months before this homicide appellant’s wife procured a divorce from him. The daughter was either then married or shortly thereafter did marry. Deceased, who was a widower, seems to have been paying attention to appellant’s wife at the time of the homicide, and some two weeks before same the daughter of appellant communicated to him the fact that her mother and deceased were engaged to be married. At the time of the homicide deceased was walking along a public street in Port Arthur with the woman to whom he was engaged, the former wife of appellant, .when the latter appeared, and, according- to the state’s testimony, began firing a pistol at deceased, who was eating an ice cream cone, and continued firing until deceased fell. Appellant claimed justification for ' his acts upon the ground of self-defense, and also asserted that he could be guilty of no greater offense than manslaughter because of the fact that he had been told in December of 1922 that before his wife was divorced she had been seen to get into a car with deceased and drive away; also upon the further proposition that he himself had seen deceased drive up to the home of his daughter at some date not mentioned, it being said that he thought deceased intended to seduce said daughter. The latter fact could not be relied on legally ■ as supporting manslaughter, for the reason that it occurred in the presence of appellant, who did not then resent it or attempt to inflict injury upon deceased. Article 1133 of our Penal Code provides that, in order to reduce a homicide to manslaughter because of insulting conduct toward a female relative, it must appear that the killing took place immediately upon the happening of the insulting conduct or so soon thereafter as the parties meet, etc. As setting out our view of -this contention when the conduct takes place in the presence of the accused, see Henderson v. State, 89 Tex. Cr. R. 21, 229 S. W. 537, and authorities there cited.

Nor could appellant rely on what he claimed to be insulting conduct of deceased toward his wife which occurred prior to her divorce from him, but which he asserts was ' not communicated to him until after said divorce was granted. As decisive of this question we quote from Ex parte Jones, 31 Tex. Cr. R. 446, 20 S. W. 984:

“Upon the first ground, we hold that article 601 of the Penal Code is to be construed with article 597; that is to say, the insult must be given to the female while under the protection of the slayer, and the killing must also be done while she is under his protection. The difference between the cases of an actual relation and the statutory relationship of protection is that, while in both cases the insult must be given while the relationship exists, the killing must occur at the first meeting in the case of the actual relative, and in the statutory relationship it must occur during the existence of the relationship; for, if the female so insulted leaves the protection of the slayer before the first meeting with the one insulting her occurs, the right to act is gone. The proposition that one has a right to avenge the wrongs of any female he may take under his protection, without regard to the time the injury was done, is without force or merit; for. apart from the disastrous consequences of such a construction, the insult would not, in fact, have been offered to a female relation, which must be shown before the statute can be invoked.”

We know of no authority holding a different doctrine, and think the reasoning of the court apt and sound in said opinion.

What we have jus‘t said renders it needless for us to discuss the numerous bills of exception appearing in this record complaining of various proceedings referring to or predicated on the proposition that manslaughter was rightfully in the case based on the one ground or the other above discussed.

Bills of exception Nos. 11 and 12 are in question and answer form, and cannot be considered. Bill of exceptions No. 13 presents none of the surrounding or setting of the matter objected to, and brings nothing before us for review. Bill No. 14 is qualified by the statement, which is in no wise disputed, that no exception was reserved to the matter complained of. Bills 15, 16, 17, 19, 21, 22, and 24 relate to1 various phases of the question of manslaughter growing out of the insulting conduct of deceased toward the wife or daughter, which question is not properly in the case as we have above indicated, .and for which reason said bills will not be discussed.

Bill No. 18 complains of the ruling of the court .upon the exceptions to the charge. Paragraph 11 of the charge was changed after the' exception was taken, and thereafter no exception was reserved. The court’s charge as it appears in the record fully instructs the jury to apply the reasonable .doubt as between the grades of homicide, and there seems nothing in this exception, if there be two grades in this case. The remaining exceptions to the charge are directed at the court’s manner of submitting manslaughter predicated on insulting conduct, and as we ■view it said charges were wholly uncalled for, and we therefore will not review complaints of their form.

The court gave to the jury the law of the presumption of innocence and applied the doctrine of reasonable doubt to the entire case, and also in many parts of the charge made particular application of said doctrine to specific matters submitted. We think it not incumbent on the court to give special charges which contained, among other things, the following:

“I further charge you in this connection that the burden is upon the state to prove to your satisfaction, beyond a reasonable doubt, that the defendant did not act in self-defense against either real danger, or against what appeared to him, to be danger, and, if the state has not met this burden, you will say by your verdict not guilty.”

Refusal to give this is complained of by bills of exception Nos. 20 and 23.

Bills of exception Nos. A, B, C, D, E, P, and PA are to matters pertaining to the motion for new trial and argument made by the state. These bills are lengthy, as are the qualifications of the trial court appended to each. The motion for new trial was not sworn to, nor was it accompanied by affidavits relating to any of the extraneous matters set up. The motion as to each of these matters was controverted by the state’s attorney under oath. The qualifications appended by the learned trial judge to the bills seem to have been accepted by the appellant. In the light of such facts and the qualifications we deem the bills to present no error.

An application was made for a continuance, but its refusal was not made the subject of any bill of exceptions, and it is too well settled to need citation of authorities that in such case this court will not consider a complaint of the refusal of such application.

We have carefully considered the entire record, and, finding no error, an affirmance will be ordered.

On Motion for Rehearing.

If we comprehend appellant’s original and supplemental motions for rehearing, he insists that the- record showed facts amounting to insulting conduct by deceased toward the daughter of appellant; and that the trial court should have told the jury specifically that insulting conduct toward a female relative would be adequate cause to create passion which, if it brought about the killing, would reduce same to manslaughter; also that we erred in holding that, if there was insulting conduct toward said daughter, it occurred in the presence of appellant, and, not being then resented by him, this in law was the first meeting, and he could not thereafter successfully base manslaughter passion on what then occurred.

We have sifted the record in the light of these contentions. Appellant asserts that his first knowledge of what he now claims to have been the wrong conduct of deceased with his former wife was what Bill Malanson told him in December, 1922, before this killing in May, 1923. He testified: “I positively did not hear anything about these matters, or believe anything about them until Malanson told me.” He also said, “I talked to that man, * * * and I killed Poteet on the 7th of May.”

What did Malanson tell appellant in December, 1922? We quote from his testimony:

“He told me that when I came out of Louisiana one night that Mrs. Peart was getting in a ear with Mr. Poteet, and that Mrs. Peart thought that I saw her, and she didn’t like it because I acted indifferent about it. As a matter of fact, it was nearly dusk, and I saw some one get in the car, but I couldn’t swear who it was, and I didn’t know who it was; and then he went on to tell me.
“Q. Without going into details, I will just ask you this general question: Did you learn about these matters on this occasion? A. I did.”

There is no other word of testimony as to what Malanson told him. But he says that shortly before his conversation with Malan-son he visited his daughter at Port Arthur, and soon after he got there at a little after 9 a. m. deceased drove up in a ear, and started to get out, but his daughter called to him, and said, “Papa is here,” and she went out to the car and spoke a few words to deceased, and he then drove off, giving a friendly wave- of his hand to the daughter as he did so. This is the insulting conduct relied on by appellant as far as his daughter is concerned, and he says this visit to his daughter was also in December. We quote his testimony again:

“At the time Poteet drove up in a car and 1 was there, my daughter was married then. I couldn’t give you the day of the week and the month and the year that that occurred, definitely; it was some time in December, but I don’t know what time — some ■ time in December, 1922.”

A little further on in appellant’s testimony appears the following:

“On that occasion, naturally, I made the statement to her that Poteet was a home wrecker, and she said that I was only ‘jealous, and I told her I positively was not.”

And again:

“As to whether I thought Poteet was coming there to see her, he didn’t have any business coming there, Mr. Scurlock. At that time I told her Poteet was nothing but a home wrecker. I did not say anything to her about Poteet coming to see her, and she never said anything about Poteet coming to see her.”

If then appellant knew and believed nothing against his wife and deceased until after he talked to Malanson, it would appear a little strange that he knew and believed deceased to be a home wrecker and so stated •to his daughter when he saw deceased in front of her house on the morning of the alleged misconduct. What then? We quote further from his testimony:

“X saw him drive up there before Malanson told me this, and then after Malanson told me this, due to the fact that he did drive up there when Mrs. Peart was away in Louisiana. No, I didn’t see him after Malanson told me she got in the car with Mr. Poteet. Malanson told me that in December, 1922. I saw him drive up to my daughter’s some time shortly after that. I wouldn’t be positive whether it was after he told me he saw my wife get in Poteet’s car or before that that he drove up to my daughter’s house in Port Arthur; but X know that he drove up there.”

The conduct of deceased in driving up in front of the home of the daughter of appellant, as above referred to, is the only act of deceased upon which could rest any claim that deceased was guilty of insulting conduct toward her. The fact, as testified to by appellant, that a man told him a few days before the homicide deceased said to a group of men on the street that he would have to leave them as he had to go and look after (using a vulgar word), the inference being that he was going to have intercourse with some woman, in which utterance the deceased by no word, act, or expression suggested any particular woman, seems wholly irrelevant to this contention of appellant.

We think the facts do not call for the submission of- the law of manslaughter as affirmed in our original opinion, and that appellant did meet deceased at his daughter’s home after he had information and believed him to be a home wrecker and that he did not then attack deceased at this first meeting after learning .of the fact, as asserted in his own testimony, that deceased had wrecked his home; but, if we be not correct in this, then we are further of opinion that the charge of the trial court, which gave the jury the right to acquit him of murder and to t convict only of manslaughter if they found appellant’s mind to be so inflamed by passion arising from any adequate cause as to render him incapable of cool reflection at the time of the homicide, was favorable to appellant. This authorized the jury to consider all the testimony that he could produce showing wrong conduct between his. former wife and deceased and the communication of this fact to him, and also permitted them to take into consideration the information that his former wife was going to marry deceased, etc.

In reference to the contention of appellant here made that, when the court below overruled his application for continuance, and notation of that fact was made on the docket, this obviated the necessity for a bill of exceptions properly authenticated by the court complaining of such refusal, we observe that on page 183 of Mr. Branch’s Annotated P. O. he cites many authorities holding that such docket or judgment entry will not take the place of a bill of exceptions. The propriety of this conclusion finds illustration in the case before us. Among the witnesses for whom the continuance was asked was one Berwick, and it is made to elsewhere appear that Berwick came in and was present at court during this trial, but was not used as a witness by the appellant. If this court was bound by the notation made by the court below upon his docket of an exception to the overruling of an application for continuance, ev.en though all the witnesses appeared and testified, or appeared and did not testify, the trial court would have no opportunity to make this fact known in his qualification to a bill of exceptions, and appellant would be given the benefit of something to which he was not entitled.

Believing appellant’s contentions not tenable, his motion- for rehearing will be overruled. 
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