The offense is murder, punishment fixed at confinement in the penitentiary for a period of not less than five nor more than ninety-nine years.
Artie Crain was shot and killed. The homicide took place late at night. Antecedent to the firing of the fatal shot, the appellant and his wife, one Ed Turner and the deceased, were at the domicile of the appellant, where they had spent the evening and a portion of the night in eating and drinking, and all apparently had consumed a quantity of intoxicating liquor. A gambling game was suggested and money was put upon the floor by the appellant and Turner. Mrs. Joiner objected to the game. Turner picked up some of the money from the floor and the appellant did likewise. According to Turner, he took none but his own, but according to the appellant, Turner picked up some of the money belonging to Joiner. An altercation took place in which a knife was used. In his testimony, Turner declared that the appellant was the aggressor and the producer of the knife. Appellant took the opposite position. During the altercation the deceased left the house, and following the fight, Turner left it. The appellant and his wife both possessed themselves with guns and came out upon the street.
There was no evidence of ill-feeling between the parties.
According to Turner, at the beginning of the fight between himself and the appellant, Mrs. Joiner and Crain went out of the apartment in which the fight occurred. After taking the knife from Joiner and getting his own hat, Turner left the building. *Page 256 Upon looking back, he saw appellant and his wife both armed with guns. The appellant at the time was loading his Winchester. The witness stopped after going some distance up the street and looked to ascertain whether he was followed by the appellant and his wife. He there saw them and also saw the appellant shoot Crain, who at that moment was coming across the street. The witness said that Crain did nothing before he was shot, but exclaimed when the fatal shot was fired, "Oh, Jack, you shot me," and after he fell to the ground he said, "Oh, Jack, you have killed me." Appellant did not stop, but walked up the street and said, "Well, I got him," and then remarked, "Run, you cowardly s__ of a b____."
According to Mrs. Joiner, after the fight with Turner, the appellant and his wife sat down on a bench in their apartment, and about ten minutes after Turner and Crain had left the building she heard a shot fired. Upon going out she heard someone say, "Oh, my God, I am shot." She went to the person speaking and found that it was Crain. She asked, "Who shot you?" and he replied, "I don't know."
According to the appellant's testimony, at the beginning of the difficulty between himself and Turner, Crain ran out of the house and said to Mrs. Joiner, "Come on, let's get out of here or we are going to get hurt." She ran out but stopped and said she would not leave her husband. After striking the appellant, Turner ran out. Crain had previously gone. After Mrs. Joiner had returned and while they were together in the front part of the building a shot was heard. They each left the building, going in different directions. Upon hearing his wife talking, he went to her and found Crain, who said, "My God, Jack, somebody has shot me," and in reply to a question, he said he did not know who shot him or from what direction the shot came.
There was other testimony to circumstances showing the location of the parties and the building, but a recital of such testimony is not deemed necessary.
The testimony of the appellant and his wife was to the effect that the deceased was a friend of theirs. In their testimony the appellant and his wife said that while in the premises of the appellant and sometime before the homicide, some harsh words had been exchanged between Crain and Turner.
The court submitted the issue of murder. Against the charge the following exception was urged:
"Because the same submits to the jury the only issue as to *Page 257 defendant's guilt or innocence of murder, when there is not any evidence that defendant is guilty of murder, the only issue presented by the evidence being as to whether he was guilty of manslaughter in killing deceased under the immediate influence of sudden passion arising from adequate cause, and unintentionally."
The main proposition advanced by the exception quoted is that the evidence does not warrant a conviction of murder, and that in authorizing the jury to convict of that offense, the court's charge is wrong; and that the only instruction justified by the facts would permit a conviction of the offense of manslaughter.
The judge stated to counsel for the appellant that he did not think the evidence called for a charge on manslaughter, but that if counsel for accused would embrace the law of manslaughter in a requested special charge, that such special charge would be given to the jury by the court. When this announcement was made, according to the bill of exceptions as qualified, "the defendant's counsel had a consultation with thedefendant for some thirty minutes discussing the special chargeand then informed the court that the defendant did not care forthe charge on manslaughter."
As we understand the record, the proceeding mentioned suggests that the accused and his counsel were of the opinion that they should rely solely upon their contention that the court was in error in embracing the law of murder in the charge, and that any demand for a charge on manslaughter implied in the exception to the court's charge quoted above was withdrawn. That conclusion is similar to that announced by this court in an opinion by Judge Davidson in the case of Dudley v. State, 48 S.W. 179, in which there was a withdrawal of the request for a charge on self-defense.
It seems clear that the testimony of the eye-witness, Turner, was such as demanded a charge on the law of murder, and We are not satisfied that the evidence was such as required an instruction on manslaughter, even though one had been requested or demanded by specific exception.
No defensive theory, or mitigating fact, save possibly intoxication, arises from the state's testimony, and the testimony of appellant and his witnesses presents only the theory that the fatal shot was fired by another and not by the appellant.
If the court, of its own motion, had, in addition to the law of murder, instructed on the law of manslaughter, some just ground of complaint might have inured to the accused because *Page 258 of the submission of an issue conflicting with the appellant's defensive theory and unsupported by the evidence. We are quite clear in our minds that the court was bound to charge on murder, but are not able to say that a charge on manslaughter would have been proper. Be that as it may, the record reveals no error in the failure to charge on the law of manslaughter nor in submitting the law of murder.
Counsel for the state referred to the presence of the father and mother of the deceased sitting in the court room grieving. Objection to this was made and sustained. The court also instructed the jury in writing to disregard the argument. The remarks are not regarded of a nature so harmful as to preclude their withdrawal by the court. The rule that under such conditions the court is not authorized to reverse is well supported by precedents. See Sutton v. State, 2 Tex.Crim. App. 348, and other cases collated in Branch's Ann. Tex. P. C., Sec. 382.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.