
    MASON v. STATE.
    (Court Of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Homicide (§ 307) — 'Triait-Instructions —Murder.
    In a trial for homicide, where the issue of manslaughter was presented, an instruction that mi\rder was distinguishable from every other species of homicide by the absence of circumstances which reduced the offense to negligent homicide, or which excused or justified the homicide, was erroneous in excluding the fact that if the circumstances reduced the offense to manslaughter, it would not be murder.
    [Ed. Note. — For other cases, see 'Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    2. Homicide (§ 300) — 1Trial—Instructions-t-Provoking DIFFICULTY.
    In a trial for murder, where the evidence for the state showed a difficulty between deceased and defendant; that defendant went home, returned armed, and approached deceased, and when deceased started to take off his cotton sack, fired the first shot, and when deceased ran, continued to shoot, and where the evidence for defendant showed that deceased had approached, taken hold of him, and threatened him-, and that they were separated, and that deceased .then said that he would get defendant before night; that when he approached deceased to straighten out the difficulty and avoid further trouble, deceased used insulting language and reached for a rock, whereupon he shot — an instruction on the issue of provocation of difficulty was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    3. Homicide (§ 300) — Tbial—Instructions— Self-Defense.
    On such evidence, the submission of the issue of imperfect self-defense was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    4. Homicide (§ 51) — Degrees—Manslaughter.
    Where defendant, after a difficulty with deceased, went back and made a remark calculated to provoke a renewal of the difficulty, but without any intent to kill, and where he was not justified in killing, he would be guilty of no higher offense than manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 75; Dec. Dig. § 51.]
    5. Homicide (§ 151) — Trial — Burden of Proof — Freedom from Fault.
    In a trial for homicide growing out of defendant’s remark, provoking a renewal of a difficulty, defendant did not have the burden of showing that he went on a peaceful mission, such burden, as all other issues in a criminal case, being upon the state.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 276-278; Dec. Dig. § 151.]
    6. Homicide (§ 120) — Degree—Manslaughter.
    Where defendant was justified in firing the first shot, he was justified in continuing to shoot "as long as he believed his life was in danger, and, if he continued to shoot after it was apparent that all danger had passed, but under the influence of the passion aroused by the difficulty, he would be guilty of no higher-offense than manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §i 175; Dec. Dig. § 120.]
    Appeal from District -Court,- Johnson County ; O. L. Lockett, Judge.
    Will Mason was convicted of murder, and he appeals.
    Reversed and remanded.
    F. E. Johnson and R. S. Phillips, both of Cleburne, for appellant. O. E. Lane, Asst. Atty. 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 prosecuted and convicted of murder, and his punishment assessed at five years’ confinement in the state penitentiary.

The court’s charge in this case is severely criticised in the motion for a new trial. In the first place the court, in defining murder, said: “Murder is distinguishable from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide, or which excuse or justify the homicide.” This definition is not the law where the issue of manslaughter is presented by the testimony. In this case the court recognized that the issue of manslaughter was in the case, and correctly so, by later submitting that offense to the jury, and the court erred in this definition of murder in excluding the fact that, if the facts and circumstances reduced the offense to manslaughter, it- would not be murder.

The court submitted the issues of provoking the difficulty and imperfect self-defense. Appellant contends those issues were not in the ease, but we cannot sustain this contention. The evidence for the state would show that appellant and deceased had a difficulty in the field; that appellant returned to his home, armed himself, returned to the field, and approached deceased; deceased, who was picking cotton, raised up, started to take off his cotton sack, when appellant fired the first shot; deceased turned and ran, when appellant continued to shoot, taking the pistol in both hands. This, it is true, would not present the issue of manslaughter, nor provoking the difficulty, but would be murder. However, appellant testified to a difficulty on the Friday night previously; that on the day of the difficulty deceased approached, and caught hold of him and said, “G-d d-n, if you have anything to say, say it now,” picked up a rock, and said, “You son of a bitch, I will fix you;” that he caught hold of deceased and tried to keep him from hitting him with a rock; that Mr. Bone came and separated them, and as he, appellant, turned to leave, deceased remarked, “You God d-n s-n of a b-h, I will get you before night;” that he went on off and got his coat where he had left it in the field ; that the pistol was in his coat all the time; that after he thought over the matter he decided to go and talk to deceased, and try to straighten up the differences between them, and avoid any further trouble; that he approached deceased with that end in view, and as he got close to deceased he remarked, “Well, Jacky, it seems that you still want to have trouble, and make trouble,” when deceased pulled off his sack, reached down to get a rock, and said. ‘You G-d d-n s-n of a b-h,” and as he raised up with the rock in his hand, he, appellant, fired, and continued to shoot until he fired four shots.

There is testimony supporting both the state’s and appellant’s contention, and some testimony that would authorize the jury to believe that appellant went back there and made the remark he says he did to provoke a renewal of the difficulty. Under such circumstances there was no error in submitting that issue to the jury, nor in instructing the jury that, if he went there, and by his acts and conduct provoked the difficulty, yet he did not do so with no intent to kill, and he was not justified in killing, under such circumstances he would be guilty of no higher grade of offense than manslaughter. But appellant complains of the charge as given that it placed the burden on appellant to prove that he went on a peaceful mission, and this criticism is well founded. The court required the jury to find as an affirmative fact that “he approached deceased with the intention and purpose of adjusting their differences in a peaceable and friendly manner,” and if the jury did not so find, his right of self-defense-•would be abridged. Thus, as in all other issues in a criminal case, the burden was upon the state to show that was not his mission, to the satisfaction of the jury, and not upon him to show that it was his mission. Under our law the presumption always favors the defendant, and if under the testimony the jury had a reasonable doubt that this' may have been true, his right of self-defense would not be abridged.

The issue was in the case that deceased abandoned the difficulty and fled after the first shot, when defendant took his pistol in both hands and continued to shoot, and -these latter shots were the fatal shots. In submitting this issue the court put the burden on defendant to show that the passion engendered by the encounter continued, before the jury would be authorized to find him guilty of manslaughter. This should not have been done. If defendant was justified in firing the first shot, he was justified in 'continuing to shoot as long as he believed his life was in danger; if he continued to shoot after it was apparent all danger to him had ended, and under the influence of the passion aroused by the difficulty, or if the jury had a reasonable doubt of that fact, he would be guilty of no higher grade of offense than manslaughter.

We do not deem it necessary to discuss the other criticisms of the charge, but, on account of the above errors,.the case is re' versed and remanded.  