Appellant was convicted in the District Court of Jefferson County of murder, and a penalty of ninety-nine years in the penitentiary affixed.
This court has a tremendous amount of work and the ignoring of the rules laid down in the preparation of transcripts, and a failure to place the various documents composing same in the orderly manner prescribed by rule 85 of the Rules for District and County Courts prescribed by the Supreme Court and contained in volume 142 S.W. Rep., greatly multiplies the labor of this court. The transcript in this case does not follow the rule referred to in any particular. The motion for continuance is near the end of the transcript, and the charge of the court is about the middle thereof. There is little excuse for confusing transcripts which, when as long as the one in this record, adds enormously to the burdens which already greatly taxed the powers of this court. Attention is called to this because there seems a growing tendency to carelessness in this regard, and it is hoped that those charged with the duty of preparing transcripts will carefully follow the order prescribed in the rule mentioned. *Page 196
Appellant and his wife lived together for a number of years, one child, a daughter, being born to their union. Some fifteen months before this homicide appellant's wife procured a divorce from him. The daughter was either then married or shortly thereafter did marry. Deceased, who was a widower, seems to have been paying attention to appellant's wife at the time of the homicide, and some two weeks before same the daughter of appellant communicated to him the fact that her mother and deceased were engaged to be married. At the time of the homicide deceased was walking along a public street in Port Arthur with the woman to whom he was engaged, the former wife of appellant, when the latter appeared, and, according to the State's testimony, began firing a pistol at deceased who was eating an ice-cream cone, and continued firing until deceased fell. Appellant claimed justification for his acts upon the ground of self-defense, and also asserted that he could be guilty of no greater offense than manslaughter because of the fact that he had been told in December of 1922 that before his wife was divorced she had been seen to get into a car with deceased and drive away; also upon the further proposition that he himself had seen deceased drive up to the home of his daughter at some date not mentioned, it being said that he thought deceased intended to seduce said daughter. The latter fact could not be relied on legally as supporting manslaughter, for the reason that it occurred in the presence of appellant who did not then resent it or attempt to inflict injury upon deceased. Article 1133 of our Penal Code provides that in order to reduce a homicide to manslaughter because of insulting conduct toward a female relative, it must appear that the killing took place immediately upon the happening of the insulting conduct, * * * or so soon thereafter as the parties meet, etc. As setting out our view of this contention when the conduct takes place in the presence of the accused, see Henderson v. State, 229 S.W. Rep., 537, and authorities there cited.
Nor could appellant rely on what he claimed to be insulting conduct of deceased toward his wife which occurred prior to her divorce from him, but which he asserts was not communicated to him until after said divorce was granted. As decisive of this question we quote from Ex parte Jones, 31 Tex.Crim. Rep.:
"Upon the first ground, we hold that article 601 of the Penal Code is to be construed with Article 597. That is to say, the insult must be given to the female while under the protection of the slayer, and the killing must also be done while she is under his protection. The difference between the cases of an actual relation and the statutory relationship of protection is, that while in both cases the insult must be given while the relationship exists, the killing must occur at the first meeting in the case of the actual relative, and in the statutory relationship it must occur during the existence of the relationship; for if the *Page 197 female so insulted leaves the protection of the slayer before the first meeting with the one insulting her occurs, the right to act is gone. The proposition that one has a right to avenge the wrongs of any female be may take under his protection, without regard to the time the injury was done, is without force or merit; for, apart from the disastrous consequence of such a construction, the insult would not, in fact, have been offered to a female relation, which must be shown before the statute can be invoked."
We know of no authority holding a different doctrine and think the reasoning of the court apt and sound in said opinion.
What we have just said renders it needless for us to discuss the numerous bills of exception appearing in this record complaining of various proceedings referring to or predicated on the proposition that manslaughter was rightfully in the case based on the ground or the other above discussed.
Bills of exception Nos. 11 and 12 are in question and answer form and cannot be considered. Bill of exceptions No. 13 presents none of the surrounding or setting of the matter objected to and brings nothing before us for review. Bill No. 14 is qualified by the statement, which is in nowise disputed, that no exception was reserved by the matter complained of. Bills 15, 16, 17, 19, 21, 22 and 24 relate to various phases of the question of manslaughter growing out of the insulting conduct of deceased toward the wife or daughter, which question is not properly in the case as we have above indicated, and for which reason said bills will not be discussed.
Bill No. 18 complains of the ruling of the court upon the exceptions to the charge. Paragraph 11 of the charge was changed after the exception was taken, and thereafter no exception was reserved. The court's charge as it appears in the record fully instructs the jury to apply the reasonable doubt as between the grades of homicide, and there seems nothing in this exception if there be two grades in this case. The remaining exceptions to the charge are directed at the court's manner of submitting manslaughter predicated on insulting conduct, and as we view it said charges were wholly uncalled for and we therefore will not review complaints of their form.
The court gave to the jury the law of the presumption of innocence and applied the doctrine of reasonable doubt to the entire case, and also in many parts of the charge made particular application of said doctrine to specific matters submitted. We think it not incumbent on the court to give special charges which contained, among other things, the following:
"I further charge you in this connection that the burden is upon the State to prove to your satisfaction beyond a reasonable doubt, that the defendant did not act in self-defense against either real danger, *Page 198 or against what appeared to him to be danger, and if the State has not met this burden you will say by your verdict not guilty."
Refusal to give this is complained of by bills of exception Nos. 20 and 23.
Bills of exception Nos. A, B, C, D, E, F and FA are to matters pertaining to the motion for new trial and argument made by the State. These bills are lengthy as are the qualifications of the trial court appended to each. The motion for new trial was not sworn to, nor was it accompanied by affidavits relating to any of the extraneous matters set up. The motion as to each of these matters was controverted by the State's attorney under oath. The qualifications appended by the learned trial judge to the bills seem to have been accepted by the appellant. In the light of such facts and the qualifications, we deem the bills to present no error.
An application was made for a continuance but its refusal was not made the subject of any bill of exceptions and it is too well settled to need citation of authorities that in such case this court will not consider a complaint of the refusal of such application.
We have carefully considered the entire record, and finding no error, an affirmance will be ordered.
Affirmed.
ON REHEARING.