I cannot agree to this affirmance. Appellant's punishment was assessed at four years confinement in the penitentiary under a conviction for manslaughter. The charge of the court in regard to manslaughter and negligent homicide is criticised, and upon these criticisms a reversal is sought. On the morning of December 23rd, about 3 o'clock, Ab Patterson was shot and killed. Deceased, Albert Brown, Beatty Brown and Lish Ball were in one of the parlors of a house of ill-fame, kept by appellant. There was another man present, who was a stranger. The young men were doing nothing particularly, just sitting in the parlor. Trouble came up between the stranger and appellant. "The stranger made a remark about the weather being cold, and got up to put some coal in the stove; and the woman, whom the State's witness shows was appellant, came in and ordered him not to put the coal in the stove. He said that he guessed he knew what he was doing, or when he got cold, or something of the kind, and threw a chunk of coal in the stove. The woman standing in the door started from the door around the stove, and came around the stove after him; they went on to the door. When they got to the door, there was trouble between the woman and man who had undertaken to put coal in the stove, and she either hit him or he hit her." The witnesses did not seem to know; did not see the difficulty clearly, but there was a fight or "hitting," between appellant and the stranger at the door. The stranger went out, and deceased and his crowd immediately followed: the woman holding the door until they all passed out. It is left rather uncertain whether the woman closed the door at that particular juncture. Some of the witnesses swear that she did. As the young men reached the bottom of the steps, and had taken perhaps four or five steps, the woman opened the door, having a pistol in her hand, and shot. The young men ran to the corner of the street, where deceased staggered and fell, remarking, in reply to a question, "Yes, I am shot; I am killed." He *Page 479 died immediately. This is practically the substance of the testimony of the three young men who were with deceased. The stranger did not testify, and seems to have utterly disappeared. It is also in testimony that immediately after deceased and companions got out of the door, the woman said, "hand me a gun or pistol," or an equivalent expression. Black testified that on December 23rd, about three o'clock in the morning, he was riding on Rusk street, going to his place of business, and saw five or six persons in front of appellant's house, and a woman come out on the front gallery, and called out, "Run, you sons of bitches, run;" that she put her hand upon the post and fired, then turned and walked back in the house. There was also a young lady on the inside of the door, who asked, "did they run?" and the woman firing the pistol remarked, "Yes, the sons of bitches run." She fired with a pistol, pointed towards the boys, "kinder southeast of her front door." When she said, "Run you sons of bitches run," and fired, the boys ran south. This witness did not know who the woman was, described her as being a tall woman with black hair, and the woman with her at the door as a "low, heavy, stout woman," not as tall as the other. Only one shot was fired. This witness testified further that he saw a hack in front of the house. The three young men who came out of the house immediately behind the stranger, testified they saw nothing of the hack or of anybody passing the street at the time of the trouble.
It is contended upon this state of facts, the court erred in not charging the law of manslaughter correctly. The general statutory definition of manslaughter was given, to wit: a voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified nor excused by law. Then follows the general definition of sudden passion and adequate cause. The law, as applied to the facts, in the charge is, as follows: "If you believe from the evidence, beyond a reasonable doubt, that Mildred Flifton (defendant) did in Tarrant County, on or about the 23th of December, 1903, and before the filing of the indictment read to you, unlawfully kill Ab Patterson, by shooting him with a pistol, and that said killing was committed under the immediate influence of sudden passion on the part of the defendant toward Ab Patterson, or towards some other person, as the expression `sudden passion' is above defined, and that said sudden passion arose from an adequate cause, as the expression `adequate cause' is above defined, then it will be your duty to find defendant guilty of manslaughter." This charge is criticised, because it fails to inform the jury, first, that the homicide to be brought within manslaughter must be an intentional or voluntary killing, and, second, that under the facts this charge was misleading and authorized a conviction upon a state of case which would form the predicate of negligent homicide, and that the proper distinction is not drawn between the two offenses. We are of opinion this criticism is correct. In order to constitute manslaughter, the adequate cause and sudden passion arising, there must be a voluntary or an intentional killing. *Page 480 If the pistol was fired to frighten, with no intention to kill, it could not be manslaughter, and the State's evidence suggests the killing might have occurred under that state of case. It is also criticised because the charge does not submit one of the real issues of the case, and that in using the words "towards Ab Patterson or towards some other person," is not a sufficient presentation of one of the main features presented by the evidence. It occurs to me this criticism is correct. It will be noted, under the facts shown by the three young men, friends of and in company with deceased, that they left the house immediately in the rear of the stranger who had the difficulty with the woman and had perhaps struck her at the door, which seems to have angered and enraged her. It will be further noted, under the statement of facts, these were all strangers to appellant, and when she came in the room where the young men were, it was for the purpose of stopping the "stranger" from putting coal in the stove, which brought about the difficulty between herself and the stranger. If the stranger struck her and it caused her pain, and her passions were aroused to the extent of rendering her mind incapable of cool reflection, or to suggest the issue of manslaughter if he had been killed, the court should have changed the jury, under this state of case, not the general expression "toward some other person," but if they believed her mind was enraged to such an extent as that it was incapable of cool reflection towards this stranger, and she shot at him and killed Ab Patterson, then the jury might convict of manslaughter; or if she shot at deceased thinking it was the stranger, she would be entitled to a charge on manslaughter from that standpoint. In other words, if sudden passion was engendered by her difficulty with the stranger at the door, and she immediately got her pistol, and while in this condition of mind, shot at the stranger and killed Ab Patterson, it would be manslaughter; or if she shot and killed Ab Patterson, believing it was the stranger, it would be manslaughter. There is nothing in the record indicating she was aware the stranger alluded to, was not a visitor there with and a friend of the other young men. The testimony places them in the parlor together and leaving practically together, and she found, under the testimony of Black, a group of five or six men standing on the sidewalk, a few steps from her door at the time she fired. There was no trouble between deceased and the woman, and no witness testified to any trouble between her and the deceased There was no occasion for her anger or resentment, except towards the stranger who had immediately preceded the other young men from the door out on to the street. Under their testimony, only four of the boys should have been on the street, including deceased; but the witness Black places five or six there. She was aware of the fact that five persons had just left her house. If she believed the man with whom she had the difficulty was one of the group, and shot at the one she believed to be her antagonist and by mistake killed the other man, she would be as much entitled to a charge on manslaughter as if she had killed her real antagonist. We do not believe it is an answer to this that her conviction *Page 481 was only for manslaughter. The jury assessed the punishment at four years in the penitentiary. If they had believed Black's testimony, and further that her anger and resentment was towards the stranger, they might have reduced the punishment to the minimum, to wit: two years. Again, if she fired only to frighten and not to kill, then the conviction should have been for negligent homicide. This issue is presented by the testimony of Black. The court's charge does not sufficiently draw the distinction between negligent homicide and manslaughter. The charge on manslaughter is easily susceptible of the construction that a conviction for manslaughter could have been awarded by the jury, whether the homicide was intentional or accidental.
In regard to the court's charge on negligent homicide, it is contended it is not sufficiently specific. It should be more specific, and inform the jury pertinently that, if at the time appellant fired the shot, if she did, her purpose was only to frighten and not to kill, she would be guilty of no higher offense than negligent homicide. Reddick v. State, 47 S.W. Rep., 993. The principle announced in that case is applicable here. It is true in the Reddick case, the father testified he had no intention of killing his son at the time he fired, but shot only to frighten him. Now, if appellant testified that she had no intention to kill but to frighten, the Reddick case would be exactly in point; but he did point his towards his son and shot him to death. But where the purpose may be deducible from the circumstances, the charge is as applicable as if shown by positive evidence. Where there is a doubt as to such intent or purpose of the party charged with the homicide, it is the duty of the court to solve that doubt in favor of the accused, under all circumstances and give in charge the law favorable to him. It is a basic principle of our criminal jurisprudence that a party accused of crime is entitled to the presumption of innocence and reasonable doubt, and this reasonable doubt applies to all the issues which may be suggested by the testimony, which are favorable or could be held favorable by the jury to the accused in passing upon the testimony and the credibility of the witnesses. If the jury, under the facts introduced by the State should find that in shooting the pistol it was done to frighten and not to kill, appellant was entitled to a verdict of negligent homicide. This and all other issues in cases of this character should be presented pointedly and not inferentially or negatively.
I have treated this case from the standpoint of the State's testimony altogether. Defendant herself testified, and introduced several witnesses who swear she did not fire the pistol; that she was in another room of the house at the time of the firing and had no connection with it in any manner, and knew nothing about it. There was another witness introduced, who stated he was traveling along the street at the time the shot was fired, and that the shooting did not occur at the house but out on the street, away from the house, and near the corner of the street where deceased was shown to have fallen and died. If the testimony for defendant is true, she was entitled to a verdict of not guilty. The witnesses *Page 482 in the house deny the fact that there had been any trouble between appellant and any one. No pistol was found about the house, and appellant denied having one. The testimony for the defense is very full along these lines. I therefore believe the judgment should be reversed.