
    BLOCKER v. STATE.
    (Court of Criminal Appeals of Texas.
    March 1, 1911.)
    1. Homicide (§ 308*) — Trial—Instructions.
    An instruction that, if the jury believed from the evidence, ’beyond a reasonable doubt, that defendant did shoot and thereby kill deceased as charged in the indictment, they should find him guilty of murder in the second degree, and assess punishment by imprisonment for not less than five years, was erroneous as merging self-defense and manslaughter.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 308.*]
    2. Criminal Law (§ 814*) — Instructions — Applicability to Evidence.
    A charge on manslaughter on the theory of assault and battery by deceased, causing pain or bloodshed, was erroneous, where there was no evidence that deceased struck plaintiff or caused him any pain or bloodshed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979-1985; Dec. Dig. § 814.*]
    3. Homicide (§ 309*) — Instructions —Manslaughter.
    A charge that, if deceased made an assault with a rock or a brick on defendant, and that his mind became enraged and had not cooled, he should be convicted of manslaughter was erroneous, where there was evidence not only that deceased picked up the rocks or bricks and threatened to kill defendant, -but that he used the vilest epithets, reflecting on defendant and his mother.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.*]
    4. Criminal Law (§ 815*) — Trial—Instruo- ' tions — Singling out Facts.
    Some of the facts should not he singled out, omitting other facts bearing on the same question or issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1986; Dec. Dig. § 815.*]
    5. Homicide (§ 163*) — Evidence—Reputation oe Deceased.
    Where there was no issue of self-defense, and the reputation of deceased was not in issue further than as shown by cases of assault and abusive language and threats, evidence of his good reputation was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 312-314; Dec. Dig..§ 163.*]
    6. Criminal Law (§ 736*) — Evidence—Confessions — Question' for Jury. ■
    If a question is fairly presented as to whether inducements were held out as a predicate for confessions, or if.accused was in any way led into making a confession, indicating that it may not have been voluntary, it should •either be rejected, or, if not, and it'should turn ■on the issue as to whether it was voluntarily made, then it becomes a question for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1219,1220; Dec. Dig. § 736.}
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Cornelius Blocker, alias Cornelius Levis, was convicted of murder in the first degree, and ,he appeals.
    Reversed and remanded.
    Callieutt & Call, for appellant. C. B. Lane, Asst Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

This is an appeal from a life sentence for murder in the first degree.

1. Applying the law to murder in the second degree, the court charged the jury as follows: “If you believe from the evidence, beyond reasonable doubt, that the defendant, Cornelius Blocker, alias Cornelius Levis, in Navarro county, Tex., on the 2d day of July, 1909, as alleged, with a gun, the same being a deadly weapon, did shoot and thereby kill Steve Levis, as charged in the indictment, you will find him guilty of murder in the second degree, and you will assess his punishment at confinement in the state penitentiary for any period that you may determine and state in your verdict, provided it be not less than five years.” This charge is clearly erroneous. See Clark v. State, 51 Tex. Cr. R. 519, 102 S. W. 1136; Smith v. State, 57 Tex. Cr. R. 585, 124 S. W. 679. There are numerous other cases supporting the same proposition Under this charge self-defense and manslaughter are merged into and made to constitute murder in the second degree.

2. The charge on manslaughter is attacked. The seventeenth paragraph of the court’s •charge is in the following language: “The following is deemed adequate cause: An assault and battery by the deceased, causing pain or bloodshed.” In section 21 of the charge the jury are instructed that, if de.■ceased made an unlawful assault with a rock ■or brick upon defendant, and by means of said assault there was produced in defendant’s mind such a degree of anger, rage, sudden resentment, or terror as to render it incapable of cool reflection, and “you further find that this condition of mind continued to and did' in fact exist at the very time when defendant did the shooting, and that it did render his mind incapable of cool reflection at that time, and that while defendant was laboring under such mental condition and excitement,, he, in a sudden transport of passion, shot and killed Steve Levis, he would be guilty of manslaughter.” We are of opinion the criticism of these charges is correct. In regard to the first — that is. that of assault and battery causing pain- or bloodshed — there is no evidence in this record to authorize the giving of it. No witness testified that deceased struck appellant with anything or caused him pain or bloodshed. In regard to the twenty-first section of the charge mentioned, it will be noticed that the jury were instructed that, if deceased made an assault with a rock or brick on defendant, and his mind became enraged and had not cooled, he should be convicted of manslaughter. The state did, as a matter of fact, prove that deceased went into the room where appellant and another negro boy were playing cards and was very abusive; that after abusing the boy he picked up a rock or brickbat and threatened to kill with it, which so frightened appellant that he jumped behind the door. During the remarks of the deceased, he called appellant a damn, bastardly son of a bitch, and applied epithets of even a more degrading and obscene nature, which we deem unnecessary to repeat. Section 21 of the charge referred to limits the matter occurring'at the time, as the cause of appellant’s excitement, anger, or rage, to the fact that deceased had a rock or brickbat in his hand and threatened to use it. This was but a partial submission of the real facts as the state proved them. It would hardly need reasons to show that this was an incorrect charge. Appellant in the submission of the question of manslaughter is entitled to have the ease presented as made. Here the deceased not only picked up the rock or brick and threatened to kill appellant, but he used the vilest epithets, reflecting upon him and his mother, even to the extent of being a bastard and having intercourse with his own mother, Some of the facts should not be singled out, leaving other facts, but all should be grouped when charge is so given; that is, the facts bearing on the same question or issue.

3. The state was permitted, over the objection of appellant, to introduce evidence of the good reputation of the deceased as to his being a peaceable and law-abiding man. We are of opinion that this evidence was not admissible. The issue of self-defense was not in the case; The killing did not occur immediately upon the picking up of the rock or brick by the deceased. The deceased had left the room where the first trouble occurred, and had gone outside of the house. The evidence also shows that he was out of the room for a few moments— anywhere from two or three up to, perhaps, as much as ten minutes — and at the time shot the state’s evidence excludes the idea that the deceased was trying to kill appellant or making any efforts in that direction. It is true that there was evidence elicited during the trial that the deceased had abused both appellant and appellant’s mother, wife of deceased, and had been cruel to and whip, ped appellant’s mother. The deceased had married appellant's mother, and was therefore his stepfather. We are of opinion that, under the facts of this case, the appe'hmt not haying pnt in issue the reputation of the deceased further than the isolated cases of assault and abusive language and. threats, as above stated, this would not justify evidence of the good reputation of the deceased. See Wakefield v. State, 50 Tex. Cr. R. 124, 94 S. W. 1040, where the authorities are collated.

4. The refusal of a continuance will not he discussed, inasmuch as the judgment w.ill he reversed for other causes.

5. Serious contention is made that the written confession of appellant should not have been introduced. The hill of exception is meager — does not contain the written confession; hut we find the written confession in the statement of facts. We do not express any opinion in regard to that matter here, but if, upon another trial, the question should be fairly presented as to whether inducements were held out as a predicate for the confession, or if appellant was in any way led into making a confession so as to indicate that it may not have been voluntary, the confession ought either to be rejected, or if not, and it should turn upon the issue as to whether it was voluntarily made or not, then.it would become a fact question,to be submitted to the jury under appropriate instructions.

For the errors indicated, the judgment is reversed, and the cause is remanded.  