Appellant was convicted of the murder of George Meadows, and sentenced to imprisonment for life, from which judgment he appeals to this court.
1. Appellant complains of error in the charge of the court, in this, that the court instructed the jury, that upon the question of self-defense, "the jury ought to consider the situation and circumstances of the case from the accused's standpoint, as it appeared to him at the time." Appellant contends, that the court should have instructed the jury that they must do so, and not "ought" to do so. There is no error. A jury of ordinary intelligence knows that it is their duty to receive the law from the court, and would never distinguish between "must" and "ought" or "should" in discharging that duty.
2. Appellant further objects to the charge instructing the jury, that if the person committing the homicide provoked the contest with the intention of doing serious bodily injury to the deceased, the offense is not reduced to manslaughter, but is murder; because it destroys his right of self-defense. There is no error in the charge. It was the statute, and applicable to the facts.
3. Appellant further objects to the charge instructing the jury, that if any person, without any intention to kill, brings on a difficulty, and if compelled to kill to save his life, "the killing, though unlawful, might be reduced to manslaughter." It is objected, that the court ought to have instructed the jury, that the killing would not be murder, but might be manslaughter. The charge is in the language of the decisions. Willson's Crim. Stats., sec. 1024; Green's case, 12 Texas Cr. App., 449, 450.
4. As to the sufficiency of the testimony to sustain the verdict, we can not say that it is sufficient. Appellant was the landlord and brother-in-law of the deceased, and appellant had gone his security with merchants to enable him, the deceased, to buy a stove and other things. While the crop was being gathered, appellant suspected the deceased was getting away with the cotton. Deceased had sold a bale of cotton, and had sent appellant $5 of the proceeds, which he had declined to receive. Appellant *Page 212 was suspicious and angry, and spoke in bitter terms about the deceased to the ginner, who expostulated with him, saying that the deceased could not help it, as he was of no account. Defendant agreed with him, and remarked that deceased was to be pitied. Next day, defendant having armed himself, rode to the field where deceased was weighing cotton and asked for his cotton. Deceased replied, "In his smoke house." Defendant evidently doubted it, and said it was a damned lie. Deceased became angry, and replied, "You are another, and if you don't get away from me I will hurt you." Defendant then jumped off his horse, and said, "Hurt." Deceased drew his pistol and began backing. Defendant immediately advanced on him with his pistol drawn, crying, "Drop it." Deceased replied, "I won't," and defendant fired, and deceased fell and died in a few minutes. The wife of deceased, who was picking cotton a little way off, ran up, charging him with the murder of her husband. It was shown at the trial, that she was then living on one of the defendant's farms, and did not appear against him. When other parties arrived on the ground, a cocked pistol belonging to the deceased was found. It was shown that the body had been dragged by the defendant some six or eight feet from where it fell to the wagon, and covered with a sheet by the defendant. The son of the deceased, who was present at the homicide, was the principal witness against him.
We have given the case most careful investigation. The vital question is, does it appear from the record with reasonable certainty that the appellant went into the field with a premeditated and formed design to kill the deceased, and by deliberately insulting him, brought on the difficulty for that purpose? If so, it would be murder in the first degree, and the conviction should be sustained. We think there is but little doubt that he went over to investigate the cotton question, for he thought he was being defrauded, and that he armed himself for the possible difficulty. Yet we think there are strong grounds to believe that when he declared the deceased's statement to be a damn lie, it was because he thought so, rather than to bring on a difficulty to kill deceased; and the fact that he made no effort to draw his pistol until the deceased first drew his and began backing from him, and that he then told deceased to drop his pistol, and only fired when deceased refused to obey, strongly suggests that the homicide is to be attributed to sudden uncontrollable passion caused by deceased's conduct at the time, rather than a previously formed design to kill; and, if so, it would be murder in the second degree. Bonnard's case, 25 Texas Cr. App., 197.
We prefer that this question should again be passed upon by a jury. The judgment is reversed, and the cause is remanded.
Reversed and remanded.
HURT, P. J., concurs. DAVIDSON, J., absent. *Page 213