The judgment herein was affirmed. Appellant has filed a motion for rehearing based upon several propositions.
1. It is contended the charge on manslaughter is erroneous, and that this court was in error in holding that said charge sufficiently presented the law to the jury. Upon a review of the facts and the charge complained of we have reached the conclusion that we were in error. The 22nd subdivision of the charge, in a general way, defines manslaughter, but when the court came to apply the law to the facts in the 23rd subdivision of the charge it limited the adequate cause to the acts and words of deceased at the time of the killing. The 23rd subdivision of the charge reads as follows:
"Now, in this case, if you should find from the evidence, beyond a reasonable doubt that the defendant, L.O. Barnes, shot and thereby killed the said Cecil M. Hall, and at the time he did, the actions and words of the said deceased were of such a nature as to produce adequate cause and did produce such adequate cause, and did produce in his mind of the defendant, L.O. Barnes, sudden passion, such as anger," etc.
An inspection of the language quoted will show that the court *Page 46 limited the adequate cause to the "actions and words of the deceased" at the time of the shooting. In the previous section of the charge the court had informed the jury that they should take into consideration all the facts and circumstances, but when applying the law to the facts he limited same to the action and words of the deceased at the very time of the shooting. This, under the authorities, is a restriction and limitation upon this phase of the law unwarranted by our statute, and we were in error holding the charge sufficient in the judgment of affirmance. The facts bearing upon this, without going into detail, substantially show that the parties had been, in the morning of the day of the homicide in the evening, engaged in some character of game in the "Hiawatha joint" of the deceased. High words and trouble ensued between deceased and appellant, and appellant left. Deceased threatened to take appellant's life which was subsequently communicated to appellant, some time prior to the homicide. Deceased had armed himself under the circumstances stated in the original opinion unnecessary here to repeat. In the evening just before the killing occurred, the parties were in the store of Lee Hall. Deceased went out the back door and into a store room, and was standing in the door when appellant, from his theory, was passing out the back door going home. The deceased made a remark to the effect, "Now, damn you, I have got you," and about that time placed his hand where his pistol was. It is shown that he did have a pistol and fired one shot. The testimony leaves it in doubt as to whether this remark was directed jocularly to Lee Hall, or intended for appellant. Appellant thought that it was intended for him. As appellant left the store, as he contends, going towards home, his brother holloed to him to look out, and upon looking up and taking in the situation, he jerked his pistol and fired. Under this state of case we are of opinion that we were wrong in the original opinion in sustaining this phase of the charge wherein the court limited manslaughter to the actions and words of the deceased at the time of the killing. The jury should have been instructed to view the case in the light of all the facts and circumstances. Reinhardt v. State, decided at the present term of the court; Ormon v. State, 24 Texas Crim. App., 495; Howard v. State, 23 Texas Crim. App., 265; Alexander v. State, 25 Texas Crim. App., 260; Thomas v. State, 56 S.W. Rep., 70; Swain v. State, 48 Tex.Crim. Rep.; 86 S.W. Rep., 335; Neyland v. State, 13 Texas Crim. App., 536.
2. The charge in regard to threats is seriously attacked as being erroneous. The attack upon this charge is based upon the omission from it to instruct the jury that appellant would have the right to act upon the appearance of danger. Under the authorities this point seems to be well taken. Upon another trial the court in giving a charge upon threats will also charge in reference to apparent danger in connection therewith. Sims v. State, 9 Texas Crim. App., 586; Sebastian v. State, 57 S.W. Rep., 820; Swain v. State, *Page 47 48 Tex. Crim. 98; 86 S.W. Rep., 335. There are quite a number of other authorities in line with these cited. We think that in so far as the original opinion is in conflict with the above views it is erroneous. The charge upon self-defense and upon threats upon another trial should apply the law applicable to serious bodily injury as well as danger to the life of appellant.
3. After a careful review of bills of exception Nos. 3 and 4, we have reached the conclusion we were wrong in holding there was no error shown on the face of them. Appellant offered proof by the witness C.R. Guerrant that the witness had given his son money with which to purchase the horse from Ross Stewart. It was shown by the witness Stewart that he had sold a horse to Joe Guerrant, son of C.R. Guerrant, and had received money therefor in the store of appellant, the appellant not being present. That subsequently Ross Stewart had ridden in a wagon to Mesa with a brother of appellant and Joe Guerrant, purchaser of the horse and there took the train and left the State. The State's purpose by this was to impress the jury that by the sale of the horse and the purchase thereof, that the brother of defendant had attempted to have the witness Ross Stewart leave the State and be absent from the trial of appellant. That, therefore, the evidence of C.R. Guerrant became material to show that neither appellant nor his brother had anything to do with the purchase of the horse. The State objected to this and it was excluded. The court qualifies the bill by showing that C.R. Guerrant was not present when his son bought the horse in question, and did not know of his own knowledge that his son did purchase the horse with the money he had given him; that he only knew it from what he said his son had told him. The State objected because it was hearsay, irrelevant and immaterial, etc., and because Joe Guerrant had not at that time been offered as a witness. We are of opinion that in as much as the State was trying to convey to the jury's mind that appellant had furnished the money to Guerrant to purchase Stewart's horse, and that his, appellant's brother, and Joe Guerrant, the purchaser of the horse, had carried Stewart to the train when he left the State; the appellant ought to have been permitted to show by the elder Guerrant that he in fact did let Joe Guerrant have the money. The reason for the introduction of this testimony is made stronger by reason of another bill of exception which shows that the district attorney urged before the jury that the brother of appellant had procured the absence of the witness, Ross Stewart, from the State to prevent his testimony from going before the jury. To this argument appellant urged objection because there was no testimony which showed that appellant's brother had in fact procured the absence of the witness, it having been shown also in the record that Ross Stewart had voluntarily returned to the State to testify and that appellant's brother had nothing to do with the purchase of the horse from Stewart by Joe Guerrant, therefore, there was no basis for this argument. *Page 48 Objection to this argument was overruled by the court, and he states as a reason for doing so, that the remarks of the district attorney were but deductions from the evidence as shown by the testimony of the witness Ross Stewart in the record. While these bills are not as clear as they should be, still they were of sufficient importance and clearness to put the appellant in a damaging light before the jury through the fact that the horse had been paid for in his store, and his brother had carried the witness, Stewart, who sold the horse, to the train when he left Texas. Upon another trial if the case should develop as these bills show, the testimony of the elder Guerrant should be permitted to go to the jury. We will state, however, we do not see why the testimony of the acts of these parties, either Stewart, appellant's brother, or Joe Guerrant, should have been admitted in evidence in the absence of something connecting defendant with those matters. They seem to have been all done in his absence, and he is in no way connected with either the purchase of the horse, the payment of the money, or the departure of Stewart from the State. If appellant was instrumental in having a State witness leave the State, it would be a damaging fact against him before the jury. Therefore, we say upon another trial, before any of this testimony should be permitted to go to the jury, appellant must be in some manner connected with the acts of those parties.
Believing that we were in error in the former opinion in affirming the judgment, we grant the rehearing, set aside the affirmance, and now reverse the judgment and remand the cause.
Reversed and remanded.