The appellant insists that in deciding this case and in overruling the motion for rehearing the court has mistaken the rules of law applicable to the facts; and considering the gravity of the case, we have given attention to the motion of the appellant to have considered his second motion for rehearing.
Our statute on manslaughter declares that "insulting words or conduct of the person killed towards a female relation of the party guilty of the homicide" is adequate cause to reduce the offense to the grade of manslaughter. By reason of this statute, in a case of homicide where there is evidence to the effect that the deceased used toward the female relative of the accused insulting language or conduct, it is incumbent upon the court to instruct the jury in unmistakable terms that such insulting language or conduct would be adequate cause to reduce the mind of the assailant to a state rendering him incapable of cool reflection. Fuller v. State, 54 Tex.Crim. Rep.; Gillespie v. State, 53 Tex.Crim. Rep..
In the case before us, if the language imputed to the deceased by the appellant was insulting language within the meaning of the statute, it was the duty of the court to inform the jury that if used by the deceased, as detailed by the appellant, it constituted adequate cause to reduce the offense to manslaughter. Where the testimony shows the use of language by the deceased concerning the female relative of the accused, its interpretation is primarily for the trial judge. That is to say, he is called upon to determine the import of the language. If given its natural or obvious meaning the language signifies an insult toward the female relative, it then becomes the duty of the court to recognize this meaning in his charge and tell the jury that if the language *Page 83 was used or if the appellant was informed that it was used, as the case may be, that adequate cause existed by reason thereof. If, however, the language used is not susceptible of the construction that it was an insult toward the female relative, then it is not the duty of the court to tell the jury that it was adequate cause. This is illustrated by the numerous instances in which it has been decided by the trial judge that language obviously insulting to the accused was not within the statute touching insulting language toward a female relative, and this decision upheld upon appeal. Simmons v. State, 23 Texas Crim. App., 653; Levy v. State, 28 Texas Crim. App., 203; Hayman v. State, 47 Tex.Crim. Rep., 83 S.W. Rep., 204. If the meaning of the language is dubious, then its import, in the opinion of the writer, would be a matter which, under appropriate instructions, the jury would be called upon to determine. The expressions of Judge DAVIDSON, in the opinion of the court, in the case of Jones v. State, 33 Tex.Crim. Rep., appear to support this view. From that opinion we quote: "But it may be contended that Veal's conduct towards Mrs. Jones was not `insulting,' within the meaning of the statute. To determine whether this conduct was or was not insulting, all the testimony bearing on that subject, or in any manner relating to it, should be looked to."
In fact, Articles 1134 and 1135 of the Penal Code appear in harmony with this view. They read thus: "In every case where the defense spoken of in the preceding article is relied on, it shall be competent to prove the general character of the female insulted, in order to ascertain the extent of the provocation."
It is also said: "The jury shall be at liberty to determine in every case whether, under all the circumstances, the insulting words or gestures were the real cause which provoked the killing."
In the instant case, the language imputed to the deceased and quoted in the original opinion was of a character neither obviously insulting within the meaning of the statute, nor otherwise, but its nature was such that the jury might, in the light of the circumstances, have determined to be within the purview of the statute. In the judgment of the writer, it would have been appropriate for the trial court to instruct the jury to determine the purport of the language, and that if it was used and was insulting language toward the wife of the appellant, it would be adequate cause. Whether the trial court committed error which we are called upon to review, the effect of such failure upon the disposition of the case are questions, the decision of which must depend upon the state of the record reflecting the manner of trial and the report of the evidence portraying the facts.
The court instructed the jury upon the law of manslaughter restricting them to no particular facts in evidence in determining the state of the appellant's mind, but expressly instructing them to take into account all the facts. *Page 84
The appellant excepted to the court's charge upon the ground that it "wholly fails to charge the jury, that insulting words by the deceased toward or concerning a female relative of the defendant would in law be deemed adequate cause" and in connection with this exception refers to Special Charge No. 1, which special charges embodies the whole law of manslaughter and the specific grounds of adequate cause of assault and battery causing pain and insulting words or conduct concerning a female relative. All that is contained in the special charge, which was appropriate, was embodied in the main charge, save that part relating to the insulting words or conduct. The court was not obliged to give this special charge nor would it have been proper to have done so because it would have been a repetition of matters embraced in the main charge. It, however, together with the exception to the charge did direct the attention of the trial court to the fact that appellant contended that the jury should be instructed in the language set out in the special charge, which is as follows: "Insulting words or conduct of the person killed towards or concerning a female relation of the defendant, is in law deemed adequate cause, provided the killing took place immediately upon the uttering of the insulting words towards said female relative. If the defendant was struck by the deceased and the blow caused pain, and it aroused the defendant to such a degree of anger, rage, sudden resentment or terror as render his mind incapable of cool reflection at the time of the homicide; or, if the deceased uttered insulting words towards a female relation of the defendant, and such utterances aroused the defendant to such a degree of anger, rage, sudden resentment or terror, as rendered his mind incapable of cool reflection at the time of the homicide, then, or in either event, the jury should not find him guilty of anything higher than manslaughter."
The adequacy of this exception to direct the mind of the trial court to the specific matter in hand may be questioned. As above indicated, if the court was called upon to instruct upon the language in question at all, it was to require the jury to determine its import. The exception to the charge apparently assumes that the language was insulting toward a female relative and demands of the court that it cause the jury to inquire, not what is meant, but as to whether the language was used. In other words, to determine whether the appellant told the truth when he declared that the language was used. The writer, however, if impressed with the view that the purported language was obviously insulting toward the wife of the appellant would not be inclined to give the statute requiring a specific exception to the charge so narrow an application in this character of cases as to deny to the appellant the benefit of a substantial right.
The language, of course, must be interpreted in the light of the surrounding circumstances and the relation of the parties. These are adverted in sufficient detail in the original opinion. The appellant was the only eyewitness. He admitted the homicide and sought to justify *Page 85 it, relating that he and deceased, after drinking a number of times, engaged in a game of cards in which the deceased lost his money; that a discussion of the family affairs, which is set out in the original opinion, occurred. The deceased began the difficulty by kicking the appellant out of the car in which they were sitting and attempted to use a pistol upon the appellant which was prevented by the fact that after the deceased, in getting out of the car, was caused to fall by a hole in the bottom. His evidence raises pointedly the theory of self-defense and manslaughter upon the whole facts as well as upon the fact that the deceased struck appellant with a beer-bottle. The law relating to these phases of the evidence was submitted to the jury and was broad enough to include all that was said and done, including a specific instruction that the blow causing pain or bloodshed would be adequate cause. What is said in the opinions heretofore rendered to the point that appellant did not appear to be insulted by the language used, the writer does not conceive to be intended to convey the idea that it is right of the court to determine the effect of the use of insulting language toward a female relative. Such language, when used, is, as a matter of law, cause sufficient to excite passion which will reduce the homicide to manslaughter. Whether it does or not excite passion is a question of fact for the jury. The remarks in the opinions heretofore rendered are conceived by the writer to have been made by way of argument upon the proposition that in the light of the surrounding circumstances the language in question was not regarded by the appellant nor deceased as insulting language toward the female relative of the appellant, and that the trial court, in refusing to give it an interpretation which was not given by either of the parties, was not an error authorizing the court to reverse the judgment. The writer is of the opinion that the language was not obviously within the statute; that at most it was of questionable meaning; that no specific request was made to have the jury determine its import; that the charge requested assumed that it was insulting, and was coupled with other matters embraced in the court's charge, which would have been improper to repeat in an instruction to the jury. The court embraced in his charge on manslaughter the following:
"In order to reduce a voluntary homicide to the grade of manslaughter, it is necessary not only that adequate cause existed to produce the state of mind referred to, that is, of anger, rage, sudden resentment of terror, sufficient to render it incapable of cool reflection, but also that such state of mind did actually exist at the time of the commission of the offense and that it was produced by such adequate cause.
Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty in determining the adequacy of the provocation (if any) to consider in connection therewith, all the facts and circumstances in evidence in the case, and if you find that, by reason thereof, the defendant's mind at *Page 86 the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind, in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirments of the law, and so in this case you will consider all the facts and circumstances in evidence in determining the condition of the defendant's mind at the time of the alleged killing, and the adequacy of the cause (if any) producing such condition."
Having embodied this language in the main charge, the court, in view of the record as presented did not, in refusing to give the special charge requested, or in failing to amend his original charge, upon the suggestions contained in the exception to the main charge and the special charge mentioned, commit an error requiring a reversal of the judgment.
The statutory law covering the necessity and requirements of a charge to the jury is embraced in Articles 735 to 743, Code of Criminal Procedure. Article 743 is in the following language:
"Whenever it appears by the record in any criminal action upon appeal of the defendant that any of the requirements of the nine preceding articles (arts. 735-742) have been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial, and all objections to the charge, and on account of refusal of modification of special charge shall be made at the time of the trial. (O.C. 602; Act 1897, p. 17; Act 1913, p. 278, ch. 138, Sec. 4, amending Art. 743, revised C.C.P.)
The writer has given, since the original motion for rehearing was overruled, the most careful consideration of the record in the light of the strong and forciful Second Motion for Rehearing and oral argument presented by appellant's counsel, and with full consciousness of the heavy responsibility involved in the decision of the matter, and the serious results that must follow an affirmance of the judgment, the writer is of the opinion that a proper response to a sense of duty requires the overruling of the motion, and such is the order.
Overruled.