
    LOCKETT v. STATE.
    (No. 3751.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    ■Homicide <&wkey;340 — Appeal — Harmless Error-Instructions.
    Where, in a prosecution for homicide, the coui’t charged on self-defense and further charged on manslaughter, giving- the general definition of what is meant by “under the immediate influence of sudden passion” “and adequate cause,” and stating that the passion cannot be a result of former provocation, that the act causing-' the death must be caused directly by passion from provocation then given, it not being enough that the mind is merely agitated by passion from previous or other provocation, and that the jury should consider the matters occurring at and prior to the homicide in determining provocation, with a further charge on murder and manslaughter, submitting the punishment, and the jury assessed the lowest punishment for manslaughter against the defendant, the charge is not reversible error as being so general and abstract as to mislead the jury into thinking that defendant was offering some excuse under his right of self-defense.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. &wkey; 340.] . . .
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge.
    Sidney Lockett was convicted of manslaughter, and appeals.
    Affirmed.
    L. D. Bro-wn, of La Grange,-for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of manslaughter, his punishment being assessed at two years’-confinement in the penitentiary.

The only hill of exception in the record complains of the fact that Mr. Sam Shel-bourne, foreman of the grand jury, was not a citizen of Fayette county, and therefore not a competent grand juror, and, being incompetent, he was a person not entitled to be in the grand jury- room at the time the indictment was found. It is unnecessary to discuss that question, inasmuch as the facts show that Mr. Shelbourne was a citizen of Fayette County and a qualified juror.

Appellant filed exceptions to the charge at the time it was given, first, because the court did not peremptorily instruct a verdict for the defendant. It is useless to discuss that in view of the testimony. We are of opinion the court was correct in not so instructing the jury. The second exception to the charge is because it gives general and abstract propositions of law upon the subject of manslaughter, not applicable to the facts and issues, and by the giving of which in such general and abstract form the jury were misled and confused to the prejudice of the defendant, and caused them to conclude defendant was offering some excuse under his right of self-defense. The charge on manslaughter we think is not subject to the criticism. It gives the general definition of what is meant by “under the immediate influence of sudden passion” and “adequate cause,” and that the passion is not the result of a former provocation, and that the act causing death must be caused directly by the passion arising out of the provocation then given, and it is not enough that the mind is merely agitated by passion arising from some other or previous provocation, but, in determining as to the provocation at the time, the jury-should consider all the evidence in the case, of matters occurring at the time of the difficulty, and all matters occurring prior thereto. The court also gave the definition of “adequate cause,” etc. The court charged on murder, submitting the punishment, and also on manslaughter, submitting the punishment. Take the charge as a whole, it seems to be sufficient. The court also gave a charge on self-defense, of which there is no complaint. Inasmuch as the defendant received the lowest punishment for manslaughter, and that being an issue in the case under the facts, we are of opinion there is no such error, even if the charge was not as full and specific as it might have been. Where the charge on manslaughter may be deficient in some respects, and the jury award the lowest punishment, we are of opinion the charge would not be error unless it interfered with defendant’s rights to the extent of cutting off or minimizing his theory of self-defense. Had the defendant received above the minimum punishment, the charge would have been critically reviewed, but, as before stated, manslaughter being in the case, and the court having fairly presented that question, and the lowest punishment having been awarded, and in the absence of the fact that he contended it eliminated his self-defense or in any wise minimized it, we do not believe it should be cause for reversal.

The other matters are mainly with reference to the sufficiency of the evidence to support the conviction. This issue was sharply controverted. The state’s evidence would make a case fully as high as manslaughter. That for the defendant presented the issue of self-defense. 'It is not the purpose of this opinion to review the testimony. The issues were made, and the jury decided them, and there is evidence which justifies the verdict. Under this view of the record, we think the judgment ought to be affirmed; and it is accordingly so ordered. 
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