
    (85 Tex. Cr. R. 268)
    WOOD v. STATE.
    (No. 5384.)
    (Court of Criminal Appeals of Texas.
    May 7, 1919.)
    1. Criminal Law <@=>424(3) — Statements by COCONSPIKATOES SUBSEQUENT TO MUEDER.
    In murder trial, where it was prosecution’s theory that accused and his father came to town and the killing- occurred there pursuant to their plans, evidence that the father when asking a man to sign bail bond of his son, stated that “they had accomplished just what they went there to do,” was inadmissible, since it was not made in accused’s presence, was some days subsequent to the transaction, and, if there was a conspiracy, its purpose had been accomplished, so that a coconspirator’s statement was inadmissible.
    2. Homicide <s=>300(12) — Insteuctions Ignoring Self-Defense.
    In murder trial, where issue of self-defense was made prominent by the facts, instruction on insulting words or conduct to female relative as justification held reversible error, as placing burden upon accused to prove justification to reduce the degree from murder to manslaughter, and then, in substance, instructing that if this were not done accused would be guilty of murder, thus excluding the issue of self-defense.
    3. Homicide <@=>152 — Presumptions — Degrees.
    Where the’facts raise the issues, the accused is entitled to- the benefit of the doubt on the facts as between the degrees of homicide and self-defense.
    4. Homicide <@=>151(1) — Burden oe Pro op.
    Since the burden is upon the state to show criminality, an instruction on justification from insulting words or conduct to a female relative was erroneous, where it placed the burden upon defendant, to establish that at the time of the killing accused’s mind was incapable of cool reflection.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    John Wood was convicted of manslaughter, and appeals.
    Reversed and remanded. •
    V. L. Shurtleff and B. Y. Cummings, both of Waco, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant’s conviction was for manslaughter with the minimum punishment.

In a general way the case may be thus stated: Deceased and appellant had married sisters. On account of insulting conduct and remarks made by deceased towards and about appellant’s wife, and threats made by deceased against appellant, ill feeling was engendered. They both lived in the country, and were farmers. Their trading point was Mt. Calm, in 1-Iill county, where they both were accustomed to go at their pleasure. On thq day of the killing appellant, his father, and brother-in-law went to Mt. Calm, and to a blacksmith shop in the town, for the purpose of having the horses of appellant’s father shod. While there one of the crowd borrowed a whetstone from the blacksmith to sharpen a knife. The parties separated, the father going away first from the blacksmith shop, and later the defendant, and met upon one of the main streets of the town, and were standing near a drug store. The deceased drove into town, and passed them and went some distance up the street. Appellant left the corner of the street where he was standing, and as he was traveling along the sidewalk he and deceased met at the corner of the street. A fight ensfied, and deceased was killed. Appellant was badly beaten, and some of his teeth knocked out. Others became engaged in the difficulty, and brick bats seemed to have been used rather freely. Appellant bled freely from the wounds he received, and especially from that in the mouth which knocked out his teeth.

A bill of exceptions recites the fact that appellant was placed in jail in Hill county, and something like two weeks or a few days after being incarcerated his father was seeking to get him out on bail, and asked the witness Henry Thomasson to sign such bail bond, which Thomasson did. While defendant’s father was testifying, the state, upon cross-examination, asked him if he had not visited Thomasson to induce him to sign his son’s bail bond, and if in that conversation he had stated to Thomasson that “they had accomplished just what they went there to do.” Various objections were urged to this, among other things, that it was not in the presence of appellant, it was some days subsequent to the transaction, and, even if the state sought to prove an acting together or a conspiracy to bring about trouble between deceased and defendant, that the purpose of the agreement had been accomplished, and the statement of a coconspirator could not be used against appellant. Appellant’s father denied making such statement. Subsequently, the state introduced Thomasson, and the following occurred:

“I will ask you to state whether or not he (appellant’s father) stated to you on that occasion that they had done just what they intended to do?”

Various objections were urged. In answer to the question the father said that he had not made the statement, and the witness Thomasson was placed on the stand to impeach him, and stated that appellant’s father stated “something to that effect; yes, sir.” This testimony was inadmissible for the reasons stated. The state clearly would not have been authorized to introduce this as original testimony, and under the rule laid down in Drake v. State, 29 Tex. App. 265, 15 S. W. 725, the evidence would have been inadmissible from that viewpoint. The question assumed that a conspiracy existed between the parties to kill deceased, and this statement, if such conspiracy did exist, was made by a coconspirator after the completion of the enterprise and termination or the conspiracy. Such acts and declarations are inadmissible. See 1 Branch’s Ann. P. C. p. 354, § 695, where a great number of cases are collated.

The court submitted murder, manslaughter, and, in a general way, self-defense. Hollowing these charges the court gave this instruction:

“Where a defendant accused of murder seeks to justify himself on the ground of insulting words or conduct to a female relative (of defendant’s) as a justification of the offense, you are charged that, if the defendant believed the report, the same was to him real, and, if, acting on such belief, and laboring under passion which reasonably rendered his'mind incapable of cool reflection, he killed the deceased upon their first meeting after being apprised of the insult, if any, he would be guilty of no higher offense than manslaughter. But, on the other hand, although you may believe from the evidence that the defendant had been informed of insulting acts or conduct on the part of the deceased toward defendant’s wife, and although you find that he believed such to be true, yet, if you further find that at the time of the killing his mind was capable of cool reflection, then the offense, if any, would not be manslaughter, but murder.”

The court, omitting this charge, had given a reasonably fair instruction to the jury, but this charge is a résumé of the two criminal phases of the transaction, and places the burden on the defendant to prove a justification of manslaughter in order to defeat murder, and then, in substance, instructs the jury if this has not been done he would be guilty of murder. If the issue had been alone between murder and manslaughter, there would have been less harm embodied in the charge, but the issue of self-defense was made prominent by the facts, and the charge here complained of limits the issue to the jury of criminality to the exclusion of self-defense as between murder and manslaughter. Where the facts raise the issues, the accused is entitled to the benefit of the doubt on the facts as between the degrees of homicide and self-defense. If the jury believed appellant guilty, and had a doubt as to whether he was guilty of murder or manslaughter, he was entitled to the benefit of the doubt, and a conviction for manslaughter should have followed. But he is also entitled to self-defense as against either phase or both phases. The burden is not on the defendant, but on the state, to show criminality. Insulting conduct on the part of the deceased and threats to take the life of appellant were prominent features in the evidence. The Jury-should not have been relegated to a choice between the two degrees of culpability to the exclusion of resolving the doubt in favor of the defendant as between the two degrees and in his favor on the theory of self-defense. This charge submitted only the question of guilt as between the degrees, and instructed the Jury that appellant sought to justify as against murder by claiming insulting conduct towards his wife. This we think was rather an assumption that appellant was guilty of one phase of the homicide, murder or manslaughter, to the exclusion of his theory and testimony supporting self-defense. We are of opinion this charge is of such a harmful nature that it requires a revei'sal of the judgment. Exceptions were properly and timely taken to the charge. The first objection to it was that the same placed the burden upon defendant to establish at the time of the killing that defendant’s mind was incapable of cool reflection. Again, it was objected that the charge wholly ignored the right of the defendant to act in self-defense, and in effect amounted to a suggestion to the jury to convict defendant of manslaughter. The charge, as we view it from any standpoint, as given, was erroneous, and induced the jury to ignore defendant’s rights of self-defense and convict of manslaughter.

Tne judgment is reversed, and the cause remanded. 
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