Appellant was convicted of murder in the second degree, and his punishment assessed at seven years confinement in the penitentiary.
Complaint is made of that portion of the court's charge submitting the law of manslaughter which instructs the jury "that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation." The law of manslaughter was applicable largely on account of the insulting conduct and language used by deceased in reference to the wife of appellant. There had been ill feeling between appellant and deceased for a considerable space of time prior to the homicide. The language used by deceased was of a very opprobrious character, denouncing appellant's wife as a vile woman, — in other words, a prostitute. These expressions were made known to appellant. On the evening of the homicide deceased was on the premises of one McKean, adjoining the residence of appellant. Appellant was the owner of the premises occupied by McKean, McKean being his renter. It seems that the presence of deceased, Hodges, had been interdicted on said premises by appellant. Just prior to the homicide, appellant's wife informed him of the fact that Hodges was on the premises again, and had been walking up and down the partition fence, seeking to look into their residence. Mrs. Martin (appellant's wife) went out in the back yard, and requested deceased to leave the premises. He used insulting language towards her at the time, which was heard by appellant. He immediately secured his gun, went to the northeast corner of his residence, and as he got in view of deceased, raised his gun and shot deceased. There are a great many facts and circumstances introduced in evidence which show the state of feeling between the parties. We only state in a general *Page 665 way the evidence bearing upon the question of manslaughter, and the exception to the charge because it limits the adequate cause to a provocation arising at the time of the homicide. Under this state of case the jury were charged as above stated, limiting the provocation to the time of the commission of the offense. The court further charged in this connection that if the jury believed "that deceased immediately before the killing insulted appellant's wife, and, under the immediate influence of sudden passion provoked by such insults, appellant kill deceased, to find him guilty of manslaughter;" and, further, that in judging of what transpired at the time of the homicide, and the intention with which defendant committed the homicide, to view the facts from his standpoint, in view of the relations existing between the parties and the threats made by deceased, if he made such threats. The court limited manslaughter to the provocation arising at the time of the killing. As was said in Tucker v. State (decided at present term), 50 Southwestern Reporter, 711: "Where insulting conduct or language is relied upon to reduce the homicide to manslaughter, the party is entitled, where the facts in evidence suggest the issue, to a charge in reference to the first meeting after the insulting conduct or language had been communicated; and in such case giving in charge the requirements of article 699, Penal Code, in reference to the provocation arising at the time, is erroneous," — citing Williams v. State, 24 Texas Criminal Appeals, 637; Eanes v. State, 10 Texas Criminal Appeals, 421. Defendant had the right to have the law in regard to insulting conduct as a provocation given in charge to the jury, not, limited, under the facts of this case, to the insulting language used at the time of the homicide. The jury could look to previous insults as well. This question has been frequently decided. Therefore we deem it unnecessary to discuss it. The error complaint of is intensified by the further charges of the court, wherein the jury were told that "if Frank Martin killed deceased by shooting him with a gun, under the influence of sudden passion, and that such passion was not, however, produced by the insult of Hodges to his wife at the time, but by reason of former insults offered him and his wife, and the enmity existing between them, he would be guilty of murder in the second degree;" and, further, that "if deceased killed Hodges by shooting him with a gun, with a deliberate mind, and in pursuance of a formed design, with intent to revenge former insults and wrongs of deceased, * * * would be guilty of murder in the first degree." While the jury only convicted of murder in the second degree, this latter charge especially had the tendency to minimize, and perhaps turn against him in the minds of the jury the defensive matters based upon the insulting conduct and language of deceased prior to the evening of the homicide. If viewed in the light of the provocation given at the time of the killing, the former insulting language and conduct of deceased towards appellant's wife would serve to intensify the passion arising at the time of the killing, and the defendant had the right to have the jury view the homicide from that standpoint. The court seems to have taken the view that the former provocations and insulting conduct could *Page 666 only be viewed by the jury in the light of circumstances tending to show malice and evil intent on the part of defendant, and to prevent such testimony from being used by the jury for the purpose of showing sudden passion. As we understand the law, defendant had the right to have the insulting conduct given at the time of the killing viewed in the light of the former provocation and insulting conduct. Such are the authorities in this State.
We are also of opinion that, in submitting the law of manslaughter under the facts of this case, the jury should have been further instructed that they could look to all the facts and circumstances in determining whether adequate cause, and sudden passion engendered thereby, were the cause of the killing.
It was a contested question on the trial whether appellant shot deceased from the window of his house, or from a point in his yard near the northeast corner of the residence, — the State's theory being that he fired from the window; and appellant's, that he fired from the corner of the house while standing in the yard. The issue was one of vital importance, and the testimony positive both ways. Among other witnesses introduced was S.R. Kone, by whom appellant proved various experiments made by placing parties at the corner of the house, and where the shot took effect in the fence and in the barn, and where deceased stood, in order to ascertain whether appellant actually stood at this point, or fired from the window. Without going into details, many observations and a few experiments were made by this witness and others. The contention of defendant was, if the shot was fired from the window, they could not have made the holes in the fence and barn, as shown to have been made by the shot from appellant's gun, and which missed deceased. After detailing these experiments, defendant proposed to prove by him that after making these experiments the shot holes in the fence could not have been made by anyone firing from the window as testified by the State's witnesses. We believe, under the circumstances of this case, this testimony should have been admitted. It is sometimes practically impossible for the witness to detail facts and circumstances so as to convey a correct idea of the facts sought to be proved by him, — as, for instance, comparing the tracks upon the ground with the shoes found upon the accused. This is denominated by the writers as being a shorthand rendering of the facts, and under such circumstances this character of testimony is generally admissible. Powers v. State, 23 Texas Crim. App., 42; Clark v. State, 28 Texas Crim. App., 189; Crumes v. State, 28 Texas Crim. App., 516. For the reasons indicated, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 667