Appellant was convicted of murder in the second degree, and his punishment assessed at fifty years confinement in the penitentiary.
Appellant's defense was that the killing was accidental, and that his wife had possession of a shotgun and that he was attempting to take the gun away from her, when in the struggle over the gun it was accidentally discharged, the wife receiving the contents in her body, which caused her death.
1. The court submitted to the jury the issues of murder in the first and second degrees, and instructed the jury that if they believed from the evidence that deceased had possession of the gun, and that defendant in attempting to take same from her, and in the struggle to disarm her, the gun was accidentally discharged and deceased was killed from such discharge, the jury should acquit, or if they had a reasonable doubt of such fact they should acquit. Appellant insists the court erred in not charging upon manslaughter. We see no element of manslaughter in this case. The suggestion upon which the issue of manslaughter is insisted on by appellant is that defendant's mind was rendered incapable of cool reflection by the fact that deceased was whipping the child of appellant and deceased, deceased being the wife of appellant. There is no evidence in this record that deceased was inflicting any species of cruelty or inhuman punishment in chastising her child. The mere fact that appellant was the father of the child and husband of the deceased would not authorize appellant to kill her for said act, and claim a manslaughter verdict.
2. There was no error in the court failing to charge on negligent homicide. This was not suggested by the evidence.
3. Appellant further insists the court erred in permitting the justice of the peace to testify that he had a case in his court against defendant for fighting his wife; and also in allowing the State to prove by the witness Will Hart that he was constable, and that the defendant had paid fines for fighting his wife and assaulting her with a pistol and a gun. The objection to this was that it was an attempt to put the defendant's general character and reputation in evidence; that the evidence was hearsay and immaterial. When appellant was on the stand he was asked if he had not paid fines for fighting his wife. This he denied, and said he and his wife had always gotten along well. The court said he allowed this testimony to impeach appellant. We hold the testimony was admissible for the purpose of proving motive, animus and intent at the time of the homicide. The testimony could not justly be appropriated by the jury for any other purpose than that suggested. It follows the *Page 3 court did not err in failing to limit this testimony in his charge for which it was admissible as above suggested. We think the evidence in this case very clearly sustains the verdict. It shows that appellant killed his wife without any real cause. While the punishment of fifty years may appear excessive, we do not think so in the light of this record.
Affirmed.