
    MITCHELL v. STATE.
    (No. 3612.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.
    State’s Rehearing Denied Oct. 13, 1915.)
    1. Homicide <@==>47 — Manslaughter—Pro vo - CATION.
    To reduce a killing to manslaughter, and upon defendant’s belief of adultery between his wife and deceased, the killing must take place at the first meeting of the parties after he has become aware of the facts.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 71; Dec. Dig. @==>47.] ^
    
    2. Criminal Law <g=»1159 — Review—Questions oe Eact.
    The jury is the trier of facts, and an appellate court, seldom feels authorized to reverse a criminal case solely on the ground of the insufficiency of the evidence, if the state’s evidence is worthy of credit, and, if true, supports the verdict.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 3074 — 3083; Dec. Dig. @=> 1159.]
    3. Homicide <@==>309 — Manslaughter — Instructions — Proper Provocation.
    In a prosecution for murder, where the evidence showed that the killing was occasioned by defendant’s belief of adultery of his wife with deceased, and that defendant, though he had no knowledge of it, had information authorizing him to believe that it had occurred, that he had come in contact with deceased after having such information, and that when he observed the efforts of deceased to renew such relations he shot from the window of his house and killed deceased near his store, an instruction that, if defendant’s wife and deceased had been guilty of adultery before the killing, and that defendant had no knowledge thereof and no information from -which he could believe such to be the case, the mere fact of adultery would not of itself reduce the killing to manslaughter, was erroneous, as not fairly presenting the issues made.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. <@=> 309.]
    4. Homicide <@=>309 — Manslaughter — Instructions—Adequate Cause.
    Adultery with the wife may reduce a homicide to manslaughter, and accused, relying, on such defense, is entitled to an instruction to that effect.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. <@=> 309.]
    5. Homicide <@=>47—Manslaughter—Provo-cation.
    Adultery of defendant’s wife with deceased need not be such as to cause offense -to the wife, and where it is shown that she is equally at fault, yet, if the conduct is such as to be an outrage against the husband, adequate cause would exist reducing the homicide to manslaughter.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. § 71; Dee. Dig. <@=>47.]
    6. Homicide <@=>47 — Provocation — Manslaughter.
    Where defendant had reason to believe that his wife had committed adultery with deceased. and that the latter was then endeavoring to have such relations renewed, and it rendered his mind incapable of cool reflection, he would he guilty only of manslaughter on killing deceased.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. § 71; Dec. Dig. <§=>47. ]
    7. Witnesses <@=>269—Cross-examination-Scope.
    Where defendant claimed provocation arising from the adultery of Ms wife with the deceased, and the wife at the trial admitted such relations, the state on her cross-examination could prove her statements to the county attorney immediately after the homicide that she and deceased had been guilty of no misconduct, but could not elicit from her that defendant kept his gun downstairs and slept there, where he shot deceased from an upstairs window, as tending to show preconceived killing, as not proper cross-examination.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 949-954; Dec. Dig. <@=>269.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    J. C. Mitchell was convicted of murder, and he appeals.
    Reversed and remanded.
    Farrar & McRae, of Waxahachie, for appellant. Tom Whipple, Co. Atty., of Wax-ahachie, and C. C. McDonald, Asst. Atty. Hen., for the State.
   HARPER J.

Appellant was convicted of murder, and his punishment assessed at ten years’ confinement in the state penitentiary.

Appellant insists that the evidence in this case would only support a verdict for manslaughter, and the court erred in submitting the issue of murder. In this we think he is in error, for, although it is apparent from the whole record that appellant killed deceased because of his belief that improper relations existed between deceased and his wife, it is the law of this state that in order to reduce a killing to manslaughter, when this ground is relied on, the killing must take place at the first meeting of the parties after he has become aware of the facts. The state’s theory is that, although the record discloses that perhaps the reason why appellant killed deceased was his belief that improper relations existed between him and his wife, yet he Rad met deceased on several occasions after he came to such conclusion, and on the occasion in question appellant went upstairs in his residence, waited until deceased came out of his store, and shot deceased from ambush when he was doing nothing more than standing talking to a friend. If this is true, the appellant would be guilty of murder, and we would not disturb the verdict on the ground of the insufficiency of the evidence. It is true, if we accept the defendant’s theory of the case, and he has some evidence to support it, it would be, as said by appellant’s counsel, a typical manslaughter case.

But the jury is the trier of facts under our system of jurisprudence, and it is seldom an appellate court feels authorized to reverse a case solely on the ground of the insufficiency of the evidence, no matter what tlie court’s individual opinion of, the evidence might be, if the state’s evidence is worthy of credit, and, if true, will support the verdict rendered.

The most serious question is, and virtually the only question as made by the record: Did the court properly submit the law of manslaughter as applicable to the evidence adduced on this trial? No other theory or idea can be gathered from the reading of this record other than that appellant killed deceased because of his belief that improper relations existed between deceased and his (appellant’s) wife. It would be a different question, though he believed this, as to whether the killing would occur under circumstances which would reduce the offense to manslaughter. One cannot meet the wrongdoer frequently, and, while brooding over his wrongs, deliberately determine to slay him, and then kill him from ambush and hope to, have the offense reduced to manslaughter. Under such circumstances it would be a premeditated killing, and not a killing from an impulse of the character defined by the manslaughter statute created by the wrong done or sight of the wrongdoer. We say that there can be no doubt that the killing was occasioned by the belief of appellant that deceased and appellant’s wife were guilty of improper relations, because the record suggests no other thought or motive, and the state’s witnesses themselves testify to such a state of facts as, we think, shows this beyond a shadow of a doubt. Mr. Odom, a state’s witness, says that appellant came to him to borrow money to send his wife away, and he loaned it to him for that purpose. He says:

“Defendant told me that his wife and Sparks were, lie thought, too thick, and he had just kept for some time from killing the man, and could not stand it any longer if he could not get shed of the woman, and asked me if X would loan him the money. I told him if it was agreeable for all parties and would save trouble I would.”

After the loan was made appellant gave the money to his wife, and she left. Mr. Odom says that appellant talked to him twice, and he seemed greatly troubled about the conduct of his wife and deceased. He and all other witnesses for the state, who lived in the community, show that the conduct of deceased and appellant’s wife was a matter of common talk; that, while no one knew that any act of intercourse had occurred, yet her frequent visits to the store and their conduct towards each other, had caused in the community generally an impression that everything was not exactly right. Appellant sent his wife away, hut she went only to Dallas. Two days thereafter deceased also went to Dallas, and the evidence would show to a moral certainty that deceased and appellant’s wife were in the same room in a hotel in Dallas. The testimony of the hotel clerk and Mrs. Brown, housekeeper of the hotel, show this, and Mrs. Brown made them leave the hotel. Appellant’s wife now admits that she and deceased occupied the same room in the hotel, and there had carnal intercourse; that she went home with deceased (his wife being absent) and spent the night with him. It is true appellant was not apprised of this as a fact until after he killed deceased. After this appellant’s wife came back home. Appellant insisted on her leaving, telling her that she would disgrace their children by her course of conduct with deceased. It is not a case where appellant is alone shown to have had that opinion, but all the witnesses from that community who testify show that such was the common' rumor. A state’s witness, Mr. Dillehay, who stayed at deceased’s store while he was gone to Dallas, went to appellant and explained to him he would not have stayed at the store for deceased if he had known he was going to Dallas, where appellant’s wife was staying; that deceased misled him, and led him to believe he was only going to Waxahachie. This in and of itself was enough to let appellant know that his neighbors held the same opinion which he held. Appellant says that after his wife came home from Dallas, and insisted on staying over his protest, he finally agreed that she could do so if she would not go to deceased’s store again, and have no further communication with him. Appellant then says that a few days after his wife’s return to her home he saw deceased making signs to her and waving a handkerchief at her. The testimony of the state’s witness Odom shows that deceased at this time knew how appellant was viewing the matter. Appellant and his wife had words over this incident. Appellant says he went on with his farming until the day of the homicide, when he says, not feeling well, he was lying down upstairs, and upon looking out the window saw deceased again making signs, as he thought, to his wife, when he grabbed bis gun and shot.

The court instructed the jury:

“If you believe from the evidence that defendant’s wife and the deceased had been guilty of carnal intercourse with each other prior to the killing, and you further believe from the evidence, beyond a reasonable doubt, that the dé-fondant had .no knowledge thereof, and no information from which he could reasonably believe such to be the case, then you are instructed that the mere fact of defendant’s wife and the deceased having had carnal connection with each other would not of itself reduce the killing to manslaughter.

Appellant filed written objections to this paragraph of the charge, and we think the objections well taken. It is an incorrect proposition of law as applicable to the evidence in this case. It is true that there is no positive testimony that appellant knew that an act or acts of intercourse had taken place, yet the record is replete with evidence that he knew of facts and circumstances and had information that would authorize him to believe, and he did believe, that improper relations existed, and that they were guilty of improper conduct. There is nothing in evidence to base a finding that appellant “had no information from which he could reasonably believe such to be the case.” The record, and the entire record, shows that appellant was in possession of information that led him, to believe, and he did believe, that improper relations existed, and the killing took place because of such belief; and in this instance we think the record discloses that his belief was well founded. This paragraph instructed a conviction for a higher grade of offense than manslaughter on grounds unauthorized by law under the evidence. As we view this record, there is but one ground that would authorize a conviction for a higher grade of offense than manslaughter, and that is that appellant did not slay deceased at the first meeting; for while appellant had this information the record shows he had come in contact with deceased since receiving such information, and, unless at the time of the homicide deceased did the acts appellant contends he did do, and from such conduct appellant- was led to believe that deceased was endeavoring to get his wife to renew such relations, then a jury would be authorized to find him guilty of murder. On this issue the state has evidence that appellant’s contention is not correct, but the issue should be fairly presented in the charge that, if deceased made the signs appellant contends he did, and this conduct, viewed in the light of the information appellant had received prior to that time, led appellant to ■believe it was an effort on tbe part of deceased to induce appellant’s wife to renew the-relations, and this conduct raised such degree of anger, rage, or resentment as to render his mind incapable of cool reflection, he would only be guilty of manslaughter.

Adultery with the wife is declared by the statute to be adequate cause, and the court should have so instructed the jury, and he erred in refusing to do so at appellant’s request. The court, in defining “adequate cause,” instructed the jury:

“You are charged that insulting conduct of the person killed towards the wife of the party doing the killing is adequate cause; provided the Idlling occurs immediately upon the happening of the insulting conduct or so soon thereafter as the pai'ty killing may meet with the party killed after having learned of such insulting conduct.”

Appellant introduced testimony tending strongly to show that deceased and his wife had been guilty of adultery, if it did not conclusively show that fact; yet the evidence and all the evidence would tend to show that this was with the connivance and consent of his wife. As said in Garrett v. State, 36 Tex. Cr. R. 230, 36 S. W. 454, the conduct need not be such as to cause offense to the female herself, and in a case like this, where it is shown that the wife is equally at fault with the deceased, it ought to be made clear to the jury in the charge that, even though the wife takes no offense, and the conduct is no offense to her, yet, if the conduct is such as to be an insult and outrage against the husband, adequate cause would exist.

Appellant testifies to a course of conduct continuing from April until the homicide, at one time appellant becoming so incensed at the conduct of deceased and his wife as to cause him to force his wife to leave home, and when she returned, although she agreed to cease all relations with the deceased, yet, if what appellant says is true, he witnessed deceased attempting on two occasions to induce her to renew such relations, the last time being when he killed him; and if appellant believed their conduct had been improper, and he had condoned the past, yet if he was caused to believe, and in fact did believe, that deceased was endeavoring at the time he shot to have the relations renewed, this would be such insult to him, if it caused anger or resentment, as would reduce the offense to manslaughter. Even though deceased had not attempted to renew the relations, the matter would be real to him if he so believed from the acts of deceased, and the charge should be so framed as to so inform the jury. Jones v. State, 33 Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. Rep. 46; Messer v. State, 43 Tex. Cr. R. 97, 63 S. W. 643; Canister v. State, 46 Tex. Cr. R. 223, 79 S. W. 24; Bays v. State, 50 Tex. Cr. R. 551, 99 S. W. 561; Gillespie v. State, 53 Tex. Cr. R. 168, 109 S. W. 158. In Miles v. State, 18 Tex. App. 168, the court discusses the principles underlying this character of case, and without quoting therefrom we respectfully refer thereto.

Without taking up each paragraph of the charge on manslaughter and the objections urged thereto, we simply say that appellant is correct in his contention that it does not present the law as applicable to the facts of this case.

An act of adultery is shown, and yet the court does not tell the jury that this, in law, is adequate cause. It may be the court did not do so because appellant does not testify that he knew the act had occurred, but appellant says that after Dillehay had told him about deceased going to Dallas as soon as his wife had gone there he believed it as firmly as if he had been present and witnessed it; and, while he may be said to have condoned the act by agreeing to continue to live with her, yet, if the deceased subsequently did acts which led him to believe, and he did believe, that deceased was endeavoring to have the relations renewed, and he killed him while he was engaged in such an act, the adequate cause of the adulterous act would become a part and parcel of the act when deceased was attempting to have the relations renewed. As said before, there is but one theory upon which the state would be entitled to a verdict for a graver offense than manslaughter, and that is that appellant had come in contact with deceased since the adulterous conduct, and he did not act at that time, and deceased at the time he was slain was not engaged in conduct which would lead appellant to believe that ho was then endeavoring to renew such relations with his wife. The case was not presented to the jury from this standpoint, but a jury under the charge was authorized to convict of murder, even though they might have believed that it thus appeared to appellant. The court should tell the jury that adultery with the wife is adequate cause, and, if appellant did not know of the adulterous relations, yet the conduct of the parties was such as to lead him to believe that such relations existed, and deceased was endeavoring at the time to have the relations renewed, or it so appeared to defendant, and this rendered the mind of appellant incapable of cool reflection, he would be guilty of only manslaughter. As appellant was found guilty of murder and given ten years in the penitentiary, and the law of manslaughter was not correctly applied to the facts in the case, this will necessitate a reversal of the judgment; and, as the case will be reversed, we will call attention to another matter.

As the wife of appellant was introduced as a witness, and she admitted the adulterous relations, the state on cross-examination was and should have been permitted to prove her statements to the county attorney immediately after the homicide, when she told him that she and the deceased had been guilty of no improper conduct. This was legitimate cross-examination. But the state ought not to have been permitted to elicit from her that appellant kept his gun downstairs and slept downstairs. The shot was fired from an upstairs window, and this evidence tended strongly to support the state’s theory of a preconceived killing or murder; that the appellant had taken his gun from where it usually stayed and gone upstairs with it and there remained in ambush until deceased appeared in front of his store. This was material testimony adduced by the state from the wife and in support of its theory. This was improper, as the defendant in his examination of his wife had limited it solely to her relations with deceased. Appellant objected to all the cross-examination, and any part of it being admissible. We might not feel authorized to reverse the case because of this improperly admitted testimony, as the exception should have pointed out the inadmissible or objectionable part of the testimony. On another trial, however, if objection is made to this portion of her testimony, and appellant’s direct examination embraces no more than it did on this trial, such objection should be sustained, for the state cannot prove a material fact by the wife because she has been called to testify by the defendant on an entirely different branch of the case.

The judgment is reversed, and the cause remanded. 
      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
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