
    GARRETT v. STATE.
    (Court of Criminal Appeals of Texas.
    March 5, 1913.
    Rehearing Denied April 2, 1913.)
    1. Homicide (§ 269) — Tbial—Questions fob Juby.
    In a prosecution for murder, the question whether accused intended to kill deceased, or deemed her to be another person about to attack him, held, under the evidence, for the jury.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. § 563; Dec. Dig. § 269.]
    2. Ceiminal Law (§ 1064) — Appeal —Assignments of Erbob.
    In a prosecution for homicide, an assignment of error in the motion for new trial that the court erred in not submitting to the jury in its charge the issue of manslaughter is too general to require consideration on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    3. Homicide (§ 309) — Manslaughter.
    Where the evidence in no way showed any adequate 'cause for homicide, an instruction on manslaughter is properly refused; for without cause there can be no manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    
      4. Criminal Law (§ 875) — 'Verdict—Suiti-cienoy.
    A verdict finding accused guilty of murder in the second degree; and assessing Ms “punishment twenty years’ confinement in the penitentiary,” is sufficient, though the word “at” is omitted between “punishment” and “twenty.”
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2089, 2090; Dee. Dig. § 875.]
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
    Will Garrett was convicted of murder in the second degree, and he appeals.
    Affirmed.
    A. S. Baskett, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otüer oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was indicted for murder, convicted of murder in the second degree, and his penalty fixed at 20 years in the penitentiary.

There is no bill of exception in the record.

It is unnecessary to detail the evidence. Prom all the evidence the jury were clearly authorized to believe and find appellant guilty of murder in the second degree. It shows that for some time prior to October 10, 1905, appellant occupied one of the three rooms in the house of Lucinda Jackson, the mother of the deceased; that he worked at night and slept there in the daytime. One of the witnesses swears that said deceased slept in that room at night. Whether she did or not, she worked in the daytime away from the house and slept at this house at night; that appellant had “kept” her for some time, and was very much'attached to her; that very recently before the killing another negro man became enamored with her, and, it seems, she was about to discard appellant, and was taking up with the other negro. One of the witnesses says appellant all day of the night he killed deceased, had been sitting around the house crying and taking on and saying that Letitia (deceased) had treated him wrong; that she had gone back on him. On that day he borrowed a shotgun, procured shells, and loaded it, claiming at the time he was going hunting. I-Ie took the gun with him to his room instead, and that night when deceased was entering the room he shot and instantly killed her; her body falling in the doorway. 1-Ie immediately ran out of the room over her body and hid out all the balance of that night and at least a part, if not all, of the next day. He claimed that he thought it was the other negro man coming into his room, and did not know or think it was the deceased, claiming that said negro man had threatened to kill him, and to come to his room for that purpose. He testified to such threats by said other negro man, and testified and proved by others, also, that the other negro man had repeatedly told him he had to let that woman (deceased) alone.

Among other things, the court specifically told the jury that if they believed the appellant shot deceased, believing at the time he was shooting said other negro, Joe Smith, and accidentally killed deceased, or if they had a reasonable doubt of it, to acquit appellant. Again, that if the jury believed that appellant believed that said Joe Smith was attempting by force to break and enter his room, and when he did so appellant shot and killed deceased, believing that he was shooting at Joe Smith, and accidentally killed deceased, to acquit him. And, again, that if they believed or had a reasonable doubt that the killing was accidental, and that he did not intend to kill deceased, and did not shoot believing he was shooting, or intending to kill, her, to find him not guilty. And in passing upon all these questions they were to view the circumstances from defendant’s standpoint and as the same reasonably appeared to him at the time.

From all this the jury believed and found, and the evidence would sustain their belief and finding, that appellant, because deceased had gone back on him and was taking up with the other negro, purxiosely planped to kill her, and did kill her, knowing at the time it was deceased, and not at the time believing or thinking it was the said other negro man. All these things were for the jury, and we cannot disturb their verdict.

Appellant contends, also, that the. court should have charged' on manslaughter. He asked no special charge on that subject. His only complaint is in his motion for new trial, as follows: “Because the court erred in not i submitting to the jury in his charge the issue of manslaughter; such issue having been raised by the testimony.” It has uniformly been held by this court that such an assignment is too general to require this court to pass upon the question. Mansfield v. State, 62 Tex. Cr. R. 631, 138 S. W. 591; Luster v. State, 63 Tex. Cr. R. 546, 141 S. W. 209; Joseph v. State, 59 Tex. Cr. R. 82, 127 S. W. 171.

But even if we could consider this assignment, after a careful review of the testimony, in our opinion, manslaughter is not raised. The special issues heretofore mentioned submitted to the jury all the questions along that line that it was necessary or proper for the court to submit. The evidence in no way raises adequate cause, and without this there can be no manslaughter.

The verdict, which finds the appellant guilty of murder in the second degree, as charged in the indictment, and “assess his punishment twenty years’ confinement in the state penitentiary,” is clearly sufficient, even though the word “at,” between “punishment” and “twenty,” in the quotation above, was omitted. Section,897, White’s Ann. O. O. P.

The judgment is affirmed.

DAVIDSON, P. J.

(concurring). I agree to affirmance, but if manslaughter had been suggested by the facts the exception in the motion for new trial sufficiently raised that question.  