
    MICKLE v. STATE.
    (No. 5879.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1921.)
    1. Homicide <®=3O0( 13) — Charge on self-defense should have been qualified by charge on provoking difficulty.
    If conductor’s assault on passenger was provoked by the passenger’s words and acts, the court, in prosecution of passenger for murder of conductor, should have qualified the charge on self-defense by a charge on the law of provoking the difficulty.
    2. Homicide <S=44 — Instruction on manslaughter held erroneous.
    In prosecution of passenger for murder of street ear conductor, where there was evidence that the conductor, while the car was in motion, pushed passenger off from platform, causing him to fall on his back, instruction that, if the conductor ejected passenger, causing him bodily pain, “such as was reasonably calculated to produce passion,” the passenger could not be convicted of a higher degree of homicide than manslaughter, held erroneous, since such ejection from car constituted an assault and battery under Pen. Code 1911, arts. 1008, 1009, 1012, I014r-1016, and was sufficient to reduce the crime to manslaughter without specific proof of pain and without proof that it was calculated to produce passion.
    3. Homicide @=271 — Whether assault of deceased caused defendant pain so as to reduce crime to manslaughter held for jury.
    In prosecution of passenger for murder of street car conductor, in which it was claimed that the conductor had committed an assault on the passenger by pushing him off the car while it was in motion, and that such assault was sufficient to reduce the crime to manslaughter, the question of whether the assault caused the passenger to suffer pain held for the jury.
    4. Homicide <@=>271 — Whether defendant was under influence of passion produced by assault held for jury.
    In prosecution of passenger for murder of conductor, in which it was claimed that conductor had pushed passenger off moving ear, question of whether such' assault produced in the passenger’s mind a sudden passion of fear, rage, or resentment and rendered it incapable of cool reflection, and whether the passenger killed the conductor while under the influence of such sudden passion, held questions lor the jury.
    5. Homicide @=44 — Offense not reduced to manslaughter by deceased’s assault provoked by defendant.
    Under Yernon’s Ann. Pen. Code 1916, art. 1138, deceased’s assault on defendant would not be sufficient, even though it produced pain or bloodshed, to reduce the offense to manslaughter, if defendant provoked the assault with the intention of killing or seriously injuring deceased by conduct reasonably calculated to provoke it.
    6. Homicide @=>3!6, 348 — Erroneous instruction on manslaughter held ground for reversal on appeal from conviction Tor murder.
    Under Code Or. Proc. 1911, art. 837, § 2, stating grounds for new trial, error of court in requiring assault by deceased producing pain to have been calculated to produce jsassion in defendant’s mind held, ground for new trial, and conviction for murder with death penalty assessed will be reversed.
    Appeal from District Court, Brazoria County; M. S. Munson, Judge.
    Ivie Mickle was convicted of murder, and lie appeals.
    Reversed and remanded.
    Marsene Johnson, Elmo Johnson, Roy Johnson, and Marsene Johnson, Jr., all of Galveston, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for murder, with death penalty assessed. The facts are in substance stated in the opinion on former appeal, 85 Tex. Cr. R. 560, 213 S. W. 665.

From the state’s evidence there arise the defensive theories of self-defense and manslaughter. The deceased was a conductor on a street car in the city of Galveston. The appellant was a passenger thereon. A wordy altercation was engaged in by the deceased and the appellant, following which the appellant was ejected from the car by the deceased. After- his ejection, he ran and caught up with the car. According to one theory presented by the state’s witness Easton, the appellant, while on the car and in a scuffle with the conductor, was thrown back against the car and struck the deceased one blow with a knife. Upon this phase of the case the court instructed the jury, without qualification, upon the law of self-defense. From the testimony of Easton it appears that the appellant refused to move from the position on the car which the conductor claimed interfered with its operation; that he prepared himself for an encounter with the conductor by placing an open knife in his sleeve, and, after so doing, used insulting language to the deceased. If the conduct of the deceased, responding to appellant’s words and acts, amounted to an assault upon the appellant, while he was standing on the car, and he, as described by Easton, then struck the conductor with the knife, the charge on self-defense, if given, should have been qualified by a charge on the law of provoking the difficulty.

The issue of manslaughter arose from the testimony of several other state witnesses,. who present a theory as to the main facts directly opposed to that presented by the witness Easton. There were, however, two wounds on deceased. One may have resulted from the blow described by Easton, and one from that referred to by tlie other witness. From the testimony of,these witnesses it appeared, as indicated in detail in the former opinion, that when the appellant first boarded the car he did not pay his fare, but that another paid it for him; that he and a number of others were standing upon the platform of the car; that the conductor instructed the appellant to change his position, which he declined to do, stating that he would not move for any “damn white man,” whereupon the conductor went inside of the car, and to the place where the motorman was stationed, and returned and told the appellant to get out of the way, that he was tired of his foolishness, and caught hold of him and moved him by force. They clinched, and while the conductor was endeavoring to put the appellant off the car a passenger came to his assistance, and together they pushed him off the moving car. He fell upon his back. The car continued its course for about 150 feet, and while it was slowing up for a stop at a crossing the appellant ran and overtook it, and struck the deceased one blow with a knife, causing his death. These several eyewitnesses introduced by the state are specific and definite in their statement that they had seen the difficulty throughout; that only one blow was struck, and that was after the appellant’s ejection from the car. It appears that appellant was thrown from the platform, about 30 inches above the street, and that the street had a hard surface, and that the blow was struck but a few seconds after he arose, from the street, where he was thrown by the fall.

Upon these facts the court submitted to the jury the law of manslaughter, and in his application of the law to the facts embodied in his charge this paragraph:

“And if you should believe from the evidence that either by using unnecessary violence in such ejection or by ejecting'him when the car was moving at such speed as to expose the defendant to injury, causing him bodily pain, such as was reasonably calculated to cause and did cause in the mind of the defendant sudden passion of fear, rage, or resentment, and the defendant under the influence of such passion killed the deceased, then you are instructed that he could not be convicted of a higher degree of homicide than manslaughter.”

Against this charge various criticisms were directed in the trial court, and exceptions duly presented and preserved are presented here, calling for a review of the court’s action in refusing to amend the charge, and eliminate from the paragraph objectionable features. Our statute on the law of manslaughter categorically names certain things which in law constitute adequate cause to reduce a homicide to the grade of manslaughter. The first of these is “an assault and battery by the deceased, causing pain or bloodshed.” It has been uniformly held that, where the evidence disclosed that the deceased had committed an assault and battery, causing the accused pain or bloodshed, the jury should be told that such assault and battery would constitute adequate cause to reduce the homicide to manslaughter; and it has been likewise held without departure that in such a case a charge so framed as to permit the jury to decide whether such assault and battery was adequate cause was erroneous. In Hill v. State, 8 Tex. App. 143, Hill was convicted of the murder of Carlow. The court stated the facts thus:

“As they were going along, appellant and Robin Carlow, the deceased, commenced, as the witness says, ‘frolicking’ and ‘throwing dirt on each other.’ Finally Willis Hill got mad, pulled out a barlow knife, and told Robin Car-low that if he did not mind he would ‘cut his guts out.’ About this time one Joe Walker joined the party, and he gives his account of what subsequently occurred as follows: ‘As we passed down the road, Willis Hill and Robin Carlow got to quarreling and abusing each other. After they had gone some little distance, quarreling, Willis Hill pulled out a bar-low knife, and told Robin Carlow if he fooled with him he would cut his guts out. Robin Carlow replied, ‘Cut; I am not afraid of you.’ This brougnt the parties facing each other, each standing as if to strike each other — Willis Hill with his knife open in his hand. Robin Carlow struck Willis Hill with his fist. Willis fell to his knees. Robin Carlow held his position, with his fists doubled up and drawn back, standing on the defensive. Willis sprang up at Robin Carlow, struck at and cut him in the left side of the neck, making an ugly wound about two inches long, from which the blood flowed like water. Robin Carlow never spoke — staggered backwards, fell, and died almost immediately.”

The trial court submitted the law of manslaughter, but failed to tell the jury that an assault and battery causing pain would be adequate cause as. a matter of law, in consequence of which failure a reversal resulted. This rule has been reaffirmed in Bonnard v. State, 25 Tex. Cr. R. 198, 7 S. W. 862, 8 Am. St. Rep. 431, Lee v. State, 54 Tex. Cr. R. 385, 113 S. W. 301, Huddleston v. State, 54 Tex. Cr. R. 96, 112 S. W. 64, 130 Am. St. Rep. 875, and other cases cited in Branch’s Ann. Texas Penal Code, §§ 218 and 219. In Connell’s Case, 45 Tex. Cr. R. 162, 75 S. W. 520, the charge criticized was the following:

“You are further instructed that, if you find from the evidence that at the time of the alleged difficulty the deceased, John Connell, had made an assault upon defendant producing pain, and that such assault, either alone or considered in connection with all the other facts and circumstances in evidence, was capable of creating in the mind of a person of ordinary temper such a degree of anger, rage, sudden resentment, or terror as would render the mind incapable of cool reflection, and if you find the same created in the mind of defendant such condition at the time of the killing, the same might constitute adequate cause in the opim ion of the jury.”

The court said:

“The contention of the appellant is that the law makes an assault and battery causing pain adequate cause, and that said charge failed to tell the jury as a matter of law that same was adequate cause, but informed them that such might be adequate cause at their option. * * * Where the adequate cause proven is one of the statutory causes, as assault and battery by deceased causing pain or bloodshed, it is incumbent on the court to present this issue directly to the jury, and to inform them that it is adequate cause, because the statute makes it so.”

In the instant case the charge cannot, in our judgment, be interpreted as complying with the statute. The words “such as was reasonably calculated to cause and did cause sudden passion,” referring to the assault causing pain, necessarily qualified the effect of the assault which the 'statute declares it must be given. These words, malting an assault causing pain or bloodshed adequate cause, provided the jury believed it to be “such as was reasonably calculated to produce passion,” constitute a qualification which, assuming that the evidence showed an assault, the court was not warranted in making. The absence of testimony, in specific terms stating that the appellant was caused pain by the assault, did not absolve the court from the duty of giving a charge on adequate cause as defined in the statute. Danforth v. State, 44 Tex. Cr. R. 114, 69 S. W. 159; Gardner v. State, 44 Tex. Cr. R. 572, 73 S. W. 13; Hayman v. State, 47 Tex. Cr. R. 263, 83 S. W. 204; Anrwine v. State, 49 Tex. Cr. R. 5, 90 S. W. 39. In the cage from which we have already quoted, Hill v. State, supra, the court said:

“This issue of ‘pain’ was directly raised by that portion of the evidence which showed that defendant was stricken by~ a larger and stronger man, and knocked down .upon his knees, before he used his weapon and inflicted upon the deceased the wound which caused his death.
“We cannot tell how far the jury would have been influenced in their verdict in finding manslaughter instead of murder in the second degree, and consequently how far it would have lessened the punishment imposed, if this issue had been properly submitted.”

In our judgment, the evidence of the state’s witnesses to the effect that appellant was thrown off the car while it was moving, in a manner that caused him to fall on the street on his back, if believed by the jury, constituted an assault and battery. Under our statute the use of any unlawful violence upon the person of another with intent to injure him, whatever be the means or. the degree of violence used, is an assault and battery. Penal Code, art. 1008. Where the 'assault is committed and pain produced, the intent is presumed. Article 1009. Any means capable of inflicting injury is within the definition. Article 1012. The statute (article 1014) enumerates certain acts of violence which do not amount to an assault and battery. Among these is “in preventing or interrupting an intrusion upon the lawful possession of property”; and in the same connection it is stated that only that degree of force must be used which is necessary to effect the purpose, and that no verbal provocation justifies an assault and battery. Articles 1015 and 1016. In construing the law of assault and battery, it has often been declared that in instances where force may be lawfully exercised it amounts to an assault and battery when the force used becomes excessive. Skidmore v. State, 43 Tex. 93; Skidmore v. State, 2 Tex. App. 20; Pilcher v. State, 32 Tex. Cr. R. 557, 25 S. W. 24. In the instant case the jury might have inferred that the appellant was ejected from the car because of his use of insulting language to the conductor, a provocation which, under the statute, would not justify an assault. But, assuming that the deceased was not acting from personal resentment, but was moved by a desire to protect the property of his employer, and prevent interruption of its lawful use and possession, if he threw appellant off of a moving car in' the manner described by the state’s witnesses, the force used was excessive, and constituted an assault and battery. Wharton’s Crim. Law, vol. 2, §§ 817, 818; State v. Murphy, 61 Me. 56; State v. Noeninger, 108 Mo. 166, 18 S. W. 990. As we understand the record, from the testimony of the state’s witness Easton, the appellant was not ejected from the car at all, but jumped off the car himself. From the testimony of all the other state eyewitnesses, he was thrown off the car while it was moving. We fail to find any testimony suggesting that the ear was not moving when the appellant got off or was thrown off. If he was thrown off in the manner described, the force used was excessive, and left no basis for the jury to determine that unnecessary violence was used. That issue should not have been submitted to them. Whether he was thrown off at all was a question of fact. If he was thrown off, an assault and battery was committed. The evidence does not leave this question open. The jury should have been told distinctly that, if he was thrown off the car while it was moving, an assault was committed; that, if pain was produced thereby, there was, as a matter of law, adequate cause to reduce the offense to manslaughter.

It does not follow, as a matter of law, that the assault committed by thq deceased did cause the appellant to suffer pain. This was a question for the jury’s solution. Whether from this cause a sudden passion of fear, rage, or resentment was produced, and appellant’s mind rendered incapable of cool reflection thereby, and whether under the influence of such sudden passion the homicide took place, were questions of fact to be determined by the jury under appropriate instructions. The case throughout, however, is pervaded by the question whether the appellant’s conduct was reasonably calculated to provoke the contest and was done for that purpose with the intention of killing or seriously injuring the deceased, and the jury should, upon another trial, be made to know that, if such was- the conduct and intent of the appellant, the assault made by the deceased, though it produced pain or bloodshed, would not suffice to reduce the offense to the degree of manslaughter. Vernon’s Criminal Statutes, vol. 1, art. 1138, and cases cited in note thereunder.

What effect was produced upon the minds, of the jury by the failure to give an accurate charge upon the law of manslaughter is a matter of conjecture. We do know that thereby the appellant was deprived of the right given him by statute to have the jury told that an assault producing pain was adequate cause to reduce the offense. Because he was not accorded this statutory right, he appeals to this court from a judgment condemning him to suffer death. He was entitled to a new trial. Code of Criminal Procedure, art. 837, § 2. Our reluctance to reverse the case upon.this the second appeal cannot justify us in sanctioning the verdict assessing against him the extreme penalty, when that verdict was rendered by a jury improperly directed as to one of the substantial rights accorded to the appellant by the statute of the state.

The judgment is reversed, and the cause remanded. 
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