Referring to appellant's renewed complaint at what was said by the attorney for the state, to the effect that appellant will bear the mark of Cain, etc., leads us to say that the jury must be understood as having a fair amount of intelligence, and this jury were bound to know that said attorney had received no revelation from the Deity to the effect that he had placed any mark on the appellant, and also to know that the language used was purely a figure of speech made in the course of argument. If the jury were familiar with Holy Writ, and on this assumption counsel bases his complaint, they knew that the Book says that the mark was put on Cain as a matter of protection from those who otherwise would seek his life. We perceive no injury possible from the argument.
Appellant again urges that the facts negative any fair conclusion other than that he is guilty of no graver offense than manslaughter, and that some statements in our opinion lead to a belief that we have confused this record with another in a companion case. We have again carefully considered the testimony. It is beyond dispute that appellant found out the unfortunate *Page 356 condition of his daughter, and who was its author, on February 15, 1924, according to his own testimony. The killing took place on March 3rd following, or more than two weeks after he received this information. He testified that he had talked the matter over with his wife, who told him the doctor said the daughter was in a family way and to get the boy to marry her if he could. That some time later, appellant testified, he went up town looking for deceased but did not find him, and that he then bought a shot gun and walked around town until the sheriff took the gun away from him, and also a Winchester away from his son who was with him, but later gave the guns back to them on their promise to go home. Referring to the occasion of the homicide, appellant said he came to town in a truck. Leaving the gun, he got out of the truck and went to Comer's store for some onion sets, and that deceased came out of said store. Appellant said he called to deceased, "Mack, I want to see you a minute"; that deceased was cranking his car, and walked around back of it — over to the side of the car and got in and looked at appellant, then reached for his gun, jerking his shirt up. Appellant said he then went to his truck, a distance estimated by him to be 70 or 80 feet from where deceased was, got his gun and walked back down to where deceased was in his car and told him again that he wanted to see him, and that deceased made a motion and he, appellant, shot him. We quote a portion of the testimony of appellant:
"When I saw Mack Hart cross the sidewalk I said I wanted to see him, told him to wait a minute. When I told him this I was not standing down on the sidewalk and he was in his car, he was out on the ground; he was cranking his car when I told him this, seems like he didn't hear me, and he walked around back by the side of the car and when he looked up and seen me he grabbed for his gun and got up in the car and I turned around and walked back and picked up my gun and walked to where he was."
Appellant also said, referring to the occasion of going to his truck and getting his gun, after he had called to deceased:
"I don't know whether I was out of the sight of Mack Hart when I went on the north side to get my gun; I was something like seventy or eighty feet from him; he was not going that way. I didn't want to run him out of town, I wanted to talk with him. That is not why I went back to get my gun. I went *Page 357 back to get my gun if I had any trouble with him I would have some protection."
Appellant also testified that he told Bailey Bingham (the sheriff) to see Mack Hart; "Bailey told me when I asked him if he had seen Mack Hart, he wouldn't tell me what Mack said". Asked on cross-examination if he did not send some people to talk to deceased, appellant said he had talked with Mr. Link and "he told me he had seen some parties, didn't tell me who it was, and they would arrange things. Later he come back and told me he had seen a couple of parties, didn't tell me who they were, and said they had talked with Bailey Bingham and decided to let Bailey go to him and talk to him; that is the reason I didn't do it."
Our merciful law concedes to the frailty of human nature, that same may be swept beyond control by information of insulting conduct or words to female relatives, and, when the jury believes that a killing occurred when the mind was in such condition of uncontrollable anger, rage, resentment, etc., as to render it incapable of cool reflection, and this condition resulted from an adequate cause, the homicide may be reduced to the grade of manslaughter. It was never intended, however, that, conceding the fact of disgraceful and insulting conduct such as might be deemed sufficient to create uncontrollable passion, if the evidence showed that the passion was controlled and efforts made to cause the party guilty of the conduct, to make amends for same or apologize, or do anything of that kind, and in the event he does not, that he may then be killed — such a condition would, ipso facto, bring the offender within the pale of manslaughter. According to his own testimony, on the day of the homicide appellant saw deceased about to get in his car, and was within a few feet of him and spoke to him. That upon getting no response from deceased, appellant turned and walked away a distance of 70 or 80 feet and got his gun and then walked back, and when deceased did not respond to his invitation but made, as appellant claimed, some motion to get a gun, appellant shot. One who thus meets the insulter or traducer or ravisher of his female relative, if under the influence of uncontrollable passion, would seem likely to hurl himself at the throat of the traducer without regard to whether he had a weapon in his hand or not, or whether it was of a deadly character.
The jury were the arbiters of the various fact questions raised in this record. They were to decide whether appellant *Page 358 acted from uncontrollable passion, or whether his mind was incapable of cool reflection. We think the evidence in such condition as that the verdict is not shown to be the result of prejudice or passion or lack of calm consideration of the various issues raised.
Being unable to agree with appellant's contentions, the motion for rehearing will be overruled.
Overruled.