
    WEBSTER v. STATE.
    (No. 9990.)
    (Court of Criminal Appeals of Texas.
    April 7, 1926.
    State’s Rehearing Granted May 19, 1926.
    Further Rehearing Withdrawn Jan. 12, 1927.)
    On Motion for Rehearing.
    1. Criminal law &wkey;>806(3) — Charge as to affirmative defense need not necessarily embrace law of reasonable doubt.
    Charge submitting affirmative defense in criminal case need not necessarily include paragraph embracing law of reasonable doubt.
    2. Criminal law <@=829(18) — Failure to charge on reasonable doubt in part of charge on self-defense held not reversible error, in view of charge as a whole.
    In murder prosecution, giving of charge covering self-defense in separate paragraph, without including a charge on reasonable doubt, held not reversible error, in view of charge as a whole containing a charge thereon.
    3. Homicide <&wkey;338(l) — Admission of evidence showing fight between defendant and another prior to homicide held not reversible error.
    In murder prosecution, admission of evidence as to details of fight between defendant and another party some time prior to homicide held not reversible error.
    4. Homicide <&wkey;338(2) — Admission of evidence ' that defendant’s business associate! fainted upon hearing of homicide held not reversible error.
    
    In murder prosecution, admission of evidence that business associate of defendant fainted on hearing of killing held not reversible error.
    5. Homicide <&wkey;250 — -Evidence held sufficient to sustain conviction of manslaughter.
    In murder prosecution, evidence showing that deceased, unarmed and in shirt sleeves, attacked defendant with fist, held sufficient to support conviction for manslaughter.
    6. Homicide <&wkey;44 — Blow of fist, causing pain or bloodshed, will reduce homicide to manslaughter.
    Blow with fist, causing pain or bloodshed, is deemed adequate cause to reduce homicide to manslaughter.
    7. Homicide <&wkey;300(3) — Instruction that jury must determine, from evidence, standpoint of accused as to self-defense held not error.
    In murder prosecution, instruction on self-defense that it is jury’s duty to determine from evidence what the standpoint of accused was at time of shooting held not error.
    Commissioners’ Decision.
    Appeal from District Court, Wheeler County; W. R. Ewing, Judge.
    John B. Webster was convicted of manslaughter, and he appeals.
    Affirmed.
    Hoover, Hoover & Willis, of Canadian, for appellant.
    J. A. Holmes, Dist. Atty., of Miami, Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BERRY, J.

The offense is manslaughter, and the punishment is two years in the penitentiary.

The issue of self-defense was clearly raised by the evidence. In submitting this issue to the jury, the court- gave the following charge:

“Now, you are instructed that if, from the evidence, you believe the defendant killed the said John Patton, but further believe that at the time of so doing the deceased had made, or was making, an attack on him, which, from the manner and character of it, caused the defendant to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him, and say by your verdict, ‘Not guilty.’ ”

The appellant pertinently excepted to said charge, among other grounds, for the reason that it required the jury ’to believe the defensive theory before they could acquit the defendant, and failed to give him in connection therewith the benefit of the reasonable doubt. This charge was clearly more onerous on the the defendant than the law requires, and a charge in nowise unlike it was expressly condemned by this court in the case of Regittano v. State, 96 Tex. Cr. R. 477, 257 S. W. 906. It was also condemned in the case of Hathcock v. State, 103 Tex. Cr. R. 518, 281 S. W. 859, in an opinion delivered March 17, 1926. Also see Tucker v. State, 103 Tex. Cr. R. 598, 281 S. W. 869, on rehearing, this day decided. The state in our opinion correctly confesses error in regard to this matter.

Appellant complains at the court’s action in permitting proof of the details of a fight between the defendant and another party some time prior to the difficulty. In the event of another trial, unless there is testimony in some manner connecting the deceased with this prior difficulty, we think the evidence of it should be excluded. We know of no rule that would permit proof of the details of a prior difficulty between an appellant and a third party to- be introduced in evidence in the trial of a íiomicide case, unless the deceased was in some manner connected with said prior difficulty.

Complaint is' also made at the court’s action in permitting proof by the state that the witness Mrs. Wagner, who was connected with the appellant in the picture show business, fainted when told about the killing. This testimony in our opinion was improperly admitted. It had no bearing on the subject under investigation, and shed no light on the difficulty. If it had any effect one way or the other, it could have been only to prejudice the appellant’s case before the jury. It is always a safe rule to follow in the trial of a criminal case for the trial court to confine the testimony to matters that shed light on the transaction under investigation. The two matters last discussed -may not have been sufficient within themselves to have caused a reversal of the ease, but they are discussed in view of another trial.

For the error in the court’s charge, the judgment is reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals; and approved by the court.

On Motipn for Rehearing.

BERRY, J.

The state asks for a rehearing on the ground that the supposed error in the charge for which reversal was ordered is not sustained by the record, and that the two other matters deemed erroneous were not of such importance as to call for a' reversal.

We are of the opinion that it is not sound to attempt to lay down any hard and fast rule that every ease must be reversed in which the paragraph presenting affirmatively the theory of the defense does not contain an application thereto of the law of reasonable doubt. The cases of Hathcock v. State, 103 Tex. Cr. R. 518, 281 S. W. 859, and Tucker v. State, 103 Tex. Cr. R. 598, 281 S. W. 869, are not capable of being so construed. Those cases merely hold that the reasonable doubt should be submitted in connection with the affirmative defense offered.

In Andrews v. State, 101 Tex. Cr. R. 261, 275 S. W. 1024, upon authorities cited, this court, through its presiding judge, states:

“The rule, requiring that the law of reasonable doubt be embraceddn the paragraph of the charge submitting the affirmative defense, is not so imperative or inflexible as to demand a reversal in every instance in which the rule is not observed.”

We further state in this connection that it is a safe practice, however, and one to be commended to trial courts, that they give the law of reasonable doubt, as a part of the affirmative presentation of the defensive theory when one is advanced.

In the instant case paragraphs 15, 16, 17, and 18 of the charge all related to self-defense, and lay down directions to the jury in regard to said theory, and might appropriately have been combined in one extended paragraph. Paragraph 16 thereof is quoted in our original opinion. Paragraph 18 is as follows:

“You are further instructed that, if you should find and believe from the evidence, beyond a reasonable doubt, that the defendant did shoot and kill the said John Patton at the time and place .charged in the indictment, yet if you have a reasonable doubt as to whether the killing was done in the defendant’s self-defense, you will resolve the doubt in favor of the defendant, and say by -your verdict ‘Not guilty.’ ”

Construing paragraphs 16, 17, and 18 together, and bearing in mind the well-known rule that the charge must be. looked to as a whole, it is obvious that said last-quoted paragraph fully instructs the jury to acquit on the ground of self-defense if they have any reasonable doubt as to whether the killing was in self-defense. The jury could not have mistaken the application of the principle laid down in paragraph 18, and must have given it effect when they considered paragraphs 16 and 17. We think we erred in directing a reversal upon the ground that paragraph 16 of the charge was erroneous because it did not contain within itself an instruction upon the law of reasonable doubt. In the original opinion we overlooked paragraph 18, supra.

Neither of the other two matters mentioned in our former opinion are deemed of any serious import. From the record it appears that deceased and Will Lard went to appellant’s place of business to borrow a car. Lard and appellant went into a private office, where, in a few minutes, they had a fight. Deceased, after waiting a short time for Lard, had gone away. Lard got the worst of his encounter with appellant. From his place of business appellant went home, got his pistol with cartridges, and returned to the business part of the town, where he was some 15 or 20 minutes after his fight with Lard. Deceased approached appellant, and, without warning, struck the latter two blows with his fist. It is further made to appear that, during the short interim between the visit of Lard and deceased to appellant’s place of business, deceased had been looking for appellant, had been back to his place of business and to another place asking for him. We find nothing in the record pertaining to appellant’s fight with Lard, nor to the fainting of appellant’s witness Mrs. Waggoner which in any way could affect the sufficiency of the testimony herein to support the jury’s verdict of guilty of manslaughter, or that could have injuriously affected the rights of appellant on this trial. He was given the lowest penalty by the jury. Deceased was undisputably in his shirtsleeves. He attacked appellant with his fist, had no other weapon, struck appellant two severe .blows, whereupon appellant drew his pistol and shot twice killing deceased. A blow with . the fist, causing pain or bloodshed, is deemed • by our law-makers adequate cause to reduce a homicide to manslaughter. The jury were so told. Their verdict responded to this instruction and these facts, and they saw fit to give appellant the benefit of every apparent doubt, and inflicted the lowest penalty.

In his argument resisting the state’s motion herein, appellant urges that paragraph 17 of the court’s charge was erroneous. Same tells the jury that in viewing the matter they must look at it from what they believed from the evidence to have been the standpoint of the appellant at the time of the occurrence. This we believe to be correct. We find ourselves unable to see how the jury could look at the matter from the defendant’s standpoint, save as that standpoint was presented by the evidence adduced before them, and we perceive no error in telling the jury that it was their duty to determine from the evidence what the standpoint of the accused was at the time of the shooting. There is no analogy between the case before us either on the law applicable or the facts and that of Tro v. State, 101 Tex. Cr. R. 185, 274 S. W. 634.

The motion 'of the state is granted, the judgment of reversal set aside, and the judgment of the trial court is now affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion to Withdraw Rehearing.

MORROW, P. J.

Appellant has filed herein a motion in writing, duly verified, expressing his desire to withdraw his motion for rehearing. The motion will be granted, and mandate will issue on January 12, 1927, on the judgment of affirmance entered May 19, 1926, on the granting of the state’s motion for rehearing. 
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