
    PURVIS v. STATE.
    (No. 8889.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1925.
    Rehearing Denied June 9, 1926.)
    1. Homicide &wkey;>250, 282 — Evidence held not to warrant appellate court in holding as a matter of law that issue of murder should not have been submitted in homicide prosecution, or that conviction is not sustained by the evidence.
    In homicide prosecution, defense being Insult to defendant’s wife, evidence held not to warrant appellate court in holding as a matter of law that issue of murder should not have been submitted, or that conviction is not sustained by the evidence.
    2.' Homicide <&wkey;>282 — It'is ordinarily for jury to determine whether a killing occurred under circumstances showing manslaughter state of mind.
    Though only motive for a killing appears to be claimed insult to female relative, and killing is on first meeting, it is ordinarily for jury to determine whether killing occurred under circumstances showing manslaughter state of mind.
    3. Criminal law <&wkey;>442 — In homicide prosecution, defense being insult to defendant’s wife, contents of letter alleged to have been written by a woman to deceased held properly excluded, where deceased’s or woman’s connection with letter was not shown.
    In homicide prosecution, defense being insult to defendant’s wife, proof as to contents of letter in woman’s handwriting addressed to deceased held properly excluded, where there was no showing that deceased was connected with letter, nor was woman’s name connected with sending it to deceased, by the handwriting.
    4. Criminal law &wkey;>l 169(9) — Statement of witness, exhibiting bullet, that it was the one that killed deceased, held not to require reversal, in view of evidence that it was found in deceased’s residence and given to witness, and defendant’s admission that he had killed deceased with rifle using same bullet.
    In homicide prosecution, statement of witness that bullet exhibited by him was the one which killed deceased held not reversible error, in view of evidence showing where bullet was found in deceased’s residence, and that it had been given to witness, in connection with defendant’s admission that he had killed deceased with same caliber of rjfle as that in which bullet was used.
    5. Homicide i&wkey;>29’5( I) — Instruction, in homicide prosecution, that, if deceased gave defendant’s wife drugs and entered her room with intent to have intercourse with her, and fact v/as communicated to defendant, who believed it, there was sufficient provocation, held not misleading or confusing.
    In homicide prosecution, defense being insult to and misconduct by deceased with defendant’s wife, instruction telling jury that, though they did not believe that deceased actually had intercourse with defendant’s wife, but gave her drugs and entered her room with intent to have such relations, and fact was communicated to -defendant, who believed it, there was sufficient adequate provocation, was not misleading or restricted in requiring jury to find that deceased actually had such relations with defendant’s wife before manslaughter would arise.
    6. Homicide <&wkey;>295(l).
    If manslaughter is in issue by' reason of previous insults to female relative, or other adequate cause arising at time of killing, charge should affirmatively present matter so jury will understand that either provocation would be sufficient to reduce homicide to manslaughter; passion being present.
    7. Criminal law <&wkey;>763, 764(6) — Homicide <&wkey;> 295(1) — In homicide prosecution, defense heing insult by deceased to defendant’s wife-, requested charge as to deceased’s language on being, accused by defendant, constituting adequate cause, held properly refused, as on the weight of evidence and not correct in law.'
    In homicide prosecution, defense being insulting conduct by deceased toward defendant’s wife, defendant’s requested charge that if, after his passion had cooled on being informed of such conduct, he saw deceased, who stated that whoever said he was guilty of insulting conduct told a g-d-lie, such language would be adequate cause, held properly refused, as on the weight of evidence and not containing a correct statement of law, since deceased’s language was not an admission of guilt of insulting conduct, and further as court was not authorized to tell jury that such language would as a matter of law be adequate cause.
    8. Criminal law <&wkey;829(2l) — In homicide prosecution, defense being insulting conduct to defendant’s wife, requested charge that sudden passion need not have arisen at time of killing held properly refused, in view of charge stating that insulting conduct would constitute adequate cause, providing killing took place as soon as defendant met deceased after being informed of such conduct.
    In homicide prosecution, defense being insulting conduct by deceased toward defendant’s wife, defendant’s requested charge that it was not necessary that sudden passion arise at time of, killing in order to constitute killing manslaughter, held-' properly refused, where there was no intimation in court’s charge that passion must have arisen at time of killing, but charge did state that insulting conduct constituted adequate cause, providing killing took place as soon as defendant met deceased after having been informed thereof.
    9. Criminal law &wkey;>726, 1171(1) — District attorney’s reference to wife’s failure to testify, and statement that he knew wife’s father, and that better man never lived in county, in reply to plea to jury to send defendant back to his wife, was improper as to reference to her father, but not so injurious as to require reversal.
    District attorney’s comment in reply to argument of defendant’s counsel urging jury to send defendant home to his wife and children, on failure of defendant’s wife to testify, and his statement that her father would give her a good home, “and that there never lived a better man in Shelby county,” held improper as to quoted words, but not of such injurious character as to require reversal.
    
      ©=For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
    
      Appeal from District Court, Panola County; Chas. D. Braehfield, Judge.
    Simon Purvis was convicted of murder, and he appeals.
    Affirmed.
    Dong & Strong and A. D. Nelson, all of Carthage, and Fairchild & Redditt, of Luf-kin, for appellant.
    J. G. ■'Woolworth and B. W. Baker, both of Carthage, Tom Garrard, State’s Atty., of Lubbock, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   HAWKINS, J.

Appellant is under conviction for the murder of D. N. Oden; his punishment being assessed at confinement in the penitentiary for 10 years. It is contended that the court was in error in submitting the issue of murder; appellant asserting that the evidence at most would support a conviction for manslaughter only. Deceased was a physician living about three miles from the home of appellant. The latter had been away from home for a considerable time working, but visited his wife and family about every two weeks. During his absence his wife had been seriously ill. Deceased and another physician had been attending her. Appellant claimed that some two months before the homicide he received a letter from his wife insisting that he come home, after which she objected to his leaving again; that he noticed a chance in her appearance and frequently found her crying. He claims to have found a receipt for a registered letter from his wife to deceased which aroused his suspicion. It appears from the testimony that he wrote a decoy letter to deceased for the purpose of inducing him to come to ap>-pellant’s house. Deceased did not respond to this letter. Appellant denied that it was his purpose to kill deceased if he had appeared in response thereto, but that he only wanted to assure himself whether there was misconduct of his wife with deceased. Appellant placed this letter in the mail box of deceased, but the latter not appearing in response thereto, appellant went to the mail box to ascertain if the letter had reached its intended destination. As we understand the record this occurred a few days before the homicide, which occurred on the 28th of December. It is in evidence that appellant had invited deceased (whose wife at the time was in Louisiana) to take Christmas dinner with appellant and his family, which invitation deceased declined. Deceased was killed shortly after dark. Appellant claims that in the afternoon of that day he insisted that his wife tell him what had been disturbing her, and that she, then, for the first time, told him deceased had “doped” her, had come to her window and crawled to her bed. Appellant went to a neighbor by the name of For-shee and insisted that he go to the home of appellant and hear his wife’s statement as to deceased’s conduct. The statement made by her to Forshee was that “Dr. Oden would come to her window and she wouldn’t know anything else.” She did not tell Forshee that deceased had done anything more than that. Appellant also went to another neighbor for the purpose of advising with him about the matter, but this neighbor was absent from home. Later in the day appellant again went to the witness Forshee and asked if his (witness’) gun snapped, saying he (appellant) did not want to use his 30-30 rifle because “they would know it.” He stated to this witness a number of times that he had made up his mind what he was going to do ; that he intended to kill deceased. Forshee did not let appellant have his gun. Some two or three hours after this last conversation and between 7:30 and 8 o'clock appellant again called at the Forshee residence, and said “everything is over with at Dr. Oden’s.” The matters so far related were not known to the officers at the time of the killing, but were ascertained later. On the morning after deceased was killed his body was found in the yard pear his front gallery. Blood was found in the house and bullet marks discovered indicating that two shots had been fired from the 'inside of the house. Tracks of a horse were found at a point near the home of deceased. From tliat point the tracks of a man lead to deceased’s residence. The officers for some reason suspected appellant. They measured the feet of his two horses and compared theni with the horse tracks found. One of them, which appellant stated was his main saddle horse, did not correspond at all, the other corresponded exactly. At this time appellant denied that he knew deceased at all. After being arrested the shoes of appellant were taken and placed in the man’s tracks which led to the residence of deceased. They fitted exactly. Up-' on the trial appellant admitted the killing. He attempted to explain his conduct at the time the officers were investigating by stating that he did not want his wife’s name to be drawn into the matter. He claims to have gone to the home of deceased, not for the purpose of killing him, but to find out why he had mistreated appellant’s wife; that whén he reached the home of deceased he found a notice on the gate written by the latter for the purpose of advising his patients where he had gone, and which stated he would be back before dark; that he went into deceased’s house and remained on the back porch until deceased appeared,. which was some hour and 30 minutes later. Appellant claims that when deceased appeared appellant said to him, “Dr. Oden, I have come up here to find out why you doped my wife and mistreated her;” to which .deceased replied, “You are a g- d-liar,” or, “Whoever says that tells a g- d- lie;” that deceased ran at appellant, grabbed him, and the gun was first discharged in the scuffle; that deceased then came at him again at which time he fired the shot which resulted in deceased’s death.

Under the circumstances stated, we are not warranted in holding as a matter of law that the court should have refrained from submitting the issue of murder, nor that the verdict finding appellant guilty of that offense is not sustained by the evidence. Although the only motive for a killing appears to be a claimed insult to a female relative, and the killing is on first meeting, yet it ordinarily remains for the jury to determine whether the killing occurred under circumstances • showing a manslaughter state of mind. Davis v. State, 70 Tex. Cr. R. 37, 155 S. W. 546; Bowlin v. State, 93 Tex. Cr. R. 452, 248 S. W. 396; Stovall v. State, 95 Tex. Cr. R. 189, 253 S. W. 526; Ex parte Purvis, 96 Tex. Cr. R. 490, 258 S. W. 478; Stovall v. State, 98 Tex. Cr. R. 294, 265 S. W. 572. The testimony of the witness Forshee is to the effect that, on the visit of appellant to his house when he inquired about a gun and stated that he did not desire to use his own for the reasons heretofore stated, appellant seemed to be in a less excited frame of mind than when he first discussed the matter of the claimed insult to appellant’s wife. The evidence discloses deliberate planning of appellant with a view of concealing his identity .as the slayer, and a denial of acquaintanceship with deceased after the killing which is inconsistent with the acts of one swayed by passion.

Appellant offered to prove by C. A. Odom that he was on the same mail route with deceased Oden; that a short time before the killing he got a letter in a woman’s handwriting in his mail box, and started to read it, when, finding it was not for witness, he sent it to deceased by his son, but did not know whether deceased ever received it. It was appellant’s contention that he should be permitted to prove the contents of the letter which indicated it was from some woman who invited deceased to call on her and spoke of the good times they had had together. There is no pretense that this letter was from appellant’s wife, but the contention is that the contents of the letter was admissible as showing the character of deceased in relation with women generally. The bill may be disposed of by the court’s qualification thereto, which is:

“That there was nothing in the testimony of witness to show that the deceased was connected with the letter, nor was there a woman’s name connected with the sending of same to defendant by the handwriting.”

We assume that where the word “defendant” is last used it should have been “deceased.” The court’s ruling in excluding the proffered evidence presents no error. Terrell v. State, 88 Tex. Cr. R. 599, 228 S. W. 240; Hollingsworth v. State, 80 Tex. Cr. R. 299, 189 S. W. 488; James v. State, 40 Tex. Cr. R. 190, 49 S. W. 401; Kachel v. State, 96 Tex. Cr. R. 86, 256 S. W. 263.

W. H. Matthews exhibited before the jury two empty shells from a 30-30 rifle and a bullet which he said had killed Dr. Oden. The bullet was taken out of the house and given to witness by one La Grone. It was from a 30-30 rifle shell. As we understand the bill, the complaint is that the statement, “The bullet is the one which killed Dr. Oden,” was a conclusion of the witness. In view of- La Grone’s evidence showing where the bullet was found by him in deceased’s residence and that he had given it to witness Matthews, in. connection with the admission of appellant upon the trial that he had killed deceased with a 30-30 rifle, we do not regard the statement complained of such as would call for a reversal.

Objections in writing were made to certain paragraphs of the charge. By indorsement on the objections the learned trial judge states that paragraphs 9 and 10 were rewritten and special charges 4 and 6 were given in response to said objections. The gist of the exceptions was that the charges were too restrictive in requiring the jury to find that deceased. actually had intercourse with appellant’s wife before manslaughter would arise. Reading paragraphs 9 and 10 as they now appear in the record, and special charge No. 6, we think the criticism not tenable. The jury were told specifically in the special charge that, although they did not believe that deceased actually had intercourse with appellant’s wife, but that he did give her drugs or “dope” and entered her room with intent to have such relations with her, and this fact was communicated to appellant, and he believed it to be true, whether it was in fact true or untrue, it was sufficient to create adequate cause and provocation. There was no likelihood of the jury being misled or confused upon this point.

Appellant sought by a requested charge to have the jury instructed that, if appellant’s wife had told him deceased had used insulting conduct towards her which created in appellant’s mind such degree of anger as would render him incapable of cool reflection, but that before he saw deceased appellant’s mind had become cool and deliberate, and he was capable of cool reflection, but that upon seeing deceased appellant demanded an apology or explanation why deceased had so treated appellant’s wife, and that deceased replied, “Whoever said I doped your wife told a g- d—— lie,” and that said language created in appellant’s mind sudden passion or resentment which rendered him incapable of cool reflection, then said language would be adequate cause. This charge is predicated on the theory that the language Set out therein would be a fresh provocation, which as a matter of law would be adequate cause to reduce the hilling to manslaughter. It is well understood if manslaughter is in the case from the standpoint of previous 'insults to a female relative, and also from an •admission of such insult by deceased at the time of the hilling, or from any other adequate cause arising at the time of the hill-ing, the charge should affirmatively present these matters so the jury will understand that either provocation would be sufficient to reduce the homicide to manslaughter; passion being present. See Richardson v. State, 28 Tex. App. 221, 12 S. W. 870, and many other cases cited by Mr. Branch under section 2039 of Branch’s Ann. P. C. We do not understand the language contained in the charge and attributed to deceased at the time of the hilling to have been an admission by him that he had been guilty of insulting conduct towards appellant’s wife, but, on the contrary, a positive and vehement denial thereof. The charge, as framed, was upon the weight of the evidence and did not contain a correct statement of the law. The court was not authorized to tell the jury that the language would as a matter of law be “adequate cause.” The court did, at appellant’s request, in another special charge, tell the jury that in determining the adequacy of the provocation to consider all the facts and circumstances in evidence in the case, and if they found that by reason thereof appellant’s mind was at the time of the killing incapable of cool reflection, and that such facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof of provocation satisfied the law, and that in determining these facts the jury should consider all the facts and circumstances in evidence in determining the condition of appellant’s mind at the time of the killing. Upon this phase of manslaughter appellant did not ask for a more specific instruction than the one just adverted to Which was given at his request.

By special charge the court was requested to instruct the jury that, where insulting conduct to a female relative was relied on as adequate cause, it was not necessary that sudden passion arise at the time of the killing, but that it may have arisen at the time appellant was informed of such conduct, and if passion did arise at such time and continued to operate on his mind, and at the first meeting he killed deceased, appellant would be guilty of no greater degree of homicide than manslaughter. This charge unquestionably states the law. Its refusal would be error if there was anything in the court’s charge which would lead the jury to believe that the passion must have arisen at the time of the killing. We find some exceptions were presented to the charge because it was supposed to contain something of that character, but, if so,, the charge was corrected in response to the objection. Nowhere in it do we find an intimation that the passion must have arisen at the time of the killing if predicated on insult to appellant’s wife. On the other hand, the jury are pertinently told that insulting conduct by deceased towards appellant’s wife would constitute adequate cause, provided the killing took place so soon thereafter as appellant met with deceased after having been informed of the alleged insulting conduct. Reading the main charge in connection with the special charge given upon the subject, we cannot hold erroneous the refusal of the requested instruction now under consideration.

Complaint is made at certain language used by the district attorney in his closing argument as follows:

“They refused to" place the wife of defendant on the stand and testify for her husband, and then plead with you to send this man back to his wife, and talk about their home. Gentlemen, that woman would not sit upon the witness stand and tell a lie in the presence of Jim Moore, her father. You needn’t worry about this woman having a home. I know Jim Moore, and there never lived a better man in Shelby county, and you can rest assured that he will take caré of this woman, and she will be better off with him than she will be with this defendant.”

Objection was on the ground that there was no testimony to substantiate the statements that it was improper, as Jim Moore, the father of appellant’s. wife, was not a witness. The court attached to the bill the explanation that the argument was in reply to that made by defendant’s counsel urging the jury not to take appellant away, from his wife, but to send him home to his wife and children to make a support for them. Although the defense was predicated on an insult claimed to have been offered by deceased to appellant’s wife he refrained from placing her upon the witness stand. Reference by the district attorney to such failure was not improper. We observe nothing in the argument complained of not pertinent in reply to the argument of appellant’s counsel, save the statement that the .district attorney knew “Jim Moore, and that there never lived a better man in Shelby county.” This statement ought not to have been made. If it injected into the case an issue detrimental to appellant, we would not be inclined to hold the argument harmless, but Moore had not testified. He was not a party to the prosecution or ' defense. The statement could not have been appropriated by the jury as supporting or challenging any testimony in the record. While improper, wé are not inclined to hold the statement to be of such injurious character as calls for a reversal. A remark similar to the one here adverted to was criti-cised in Stiles v. State, 91 Tex. Cr. R. 461, 239 S. W. 963, and a reversal ordered by reason of it;, but the facts were, entirely different. The party relative to whom the statement was made in that case was the deceased and the language bore upon his character.

Binding no error in the record which calls for a reversal, the judgment is ordered affirmed.

On Motion for Rehearing.

MORROW, P. J.

We have carefully read the appellant’s motion for rehearing and have re-examined the record in the light thereof, hut have perceived nothing in either which, in our opinion, would warrant a reversal of the judgment. The disposition of the case on the original hearing is deemed correct.

The motion is overruled.  