The evidence, in our judgment, would not justify the failure to submit the issue of murder. Whether the appellant was informed of the insulting words and conduct of the deceased towards the female relative; whether thereby his mind was *Page 168 inflamed to a degree rendering it incapable of cool reflection; whether the homicide took place upon the first meeting, were all questions of fact for solution, not by the court but by the jury. Jones v. State, 33 Tex.Crim. Rep.. In Article 1135 of the Penal Code, it is said:
"The jury shall be at liberty to determine in every case whether under all the circumstances insulting words or gestures were the real cause which provoked the difficulty."
Instances have arisen in which the conviction of murder has been set aside because the character of the evidence showing that adequate cause existed; that the passion was engenderd thereby, and that the homicide took place at the first meeting, was such that no conclusion could be reached other than the true cause of the killing was the passion created by the insulting conduct towards the female relative. Among these are Doss v. State,43 Tex. Crim. 551, to which appellant refers. We do not regard that case as a precedent which would require the trial court in the present instance to have refrained from instructing the jury upon the law of murder.
In failing to respond to appellant's objections to the main charge on manslaughter and limit the submission of that issue to the only facts which authorized the charge on the law of manslaughter, namely, that of insulting conduct towards the female relative, we have concluded upon reconsideration, that there was prejudicial error.
Appellant did not hear the deceased utter the insulting words, nor did he see his insulting conduct. The homicide did not take place immediately but did take place, according to the theory of the appellant, at the first meeting with the deceased after the appellant had been informed by his wife that the insulting words and acts had taken place. Various specific objections were urged against the charge, and bills of exceptions were properly preserved, calling in question the court's ruling. Special emphasis is laid upon the criticism of the charge wherein the term "sudden passion" is used. Upon this subject, the court gave the usual charge on manslaughter, telling the jury that manslaughter was a voluntary homicide committed under the immediate influence of sudden passion arising from adequate cause; that by the expression "under the immediate influence of sudden passion" is meant: (1) That the act must be directly caused by the passion at the time of the killing; (2) The passion intended is either of the emotions of the mind known as rage, anger, sudden resentment or terror, rendering it incapable of cool reflection.
Objection was also urged to that phase of the charge contained in paragraph (9), which we copy:
"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, and if you find that by reason thereof the defendant's mind at the time of the killing was incapable of cool reflection, *Page 169 and that the facts and circumstances were sufficient to produce such a state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements 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 killing and the adequacy of the cause, if any, producing such condition."
Appellant insists that notwithstanding the paragraph of the charge which we have copied in the original opinion, that in response to his objections, the charge should have been amended for the reason that there was but one state of facts relied upon by him to reduce the offense to the grade of manslaughter. Supporting this contention, we are referred to the case of Stewart v. State, 52 Tex.Crim. Rep.. That case was one in which Stewart presented the theory that he killed the deceased at the first meeting because of information received from his wife to the effect that the deceased had been guilty of insulting conduct towards her. A charge, so far as it related to the subject of "sudden passion" not different from that now under consideration, was reviewed and held, in the light of the objections urged, to be prejudicial error, the court using this language:
"Wherever the insulting conduct is relied upon to reduce the killing to manslaughter, and the information is conveyed to the slaying relative, the question is not one of suddenness of passion, but it depends, first, upon the fact that he was so informed; and, second, that at the time of the killing his mind was incapable of cool reflection; that is, the condition of his mind as to its incapacity for cool reflection is not relegated to that portion of the statute which requires it to be sudden, for that only applies where the killing occurs upon the happening of the event. Without going further into this question, we cite in support of this: Bays v. State, 50 Tex.Crim. Rep., 17 Texas Ct. Rep., 981; Eanes v. State, 10 Texas Crim. App., 421; Niland v. State, 19 Texas Crim. App., 166; Williams v. State, 24 Texas Crim. App., 637; Richardson v. State, 28 Texas Crim. App., 217; Martin v. State, 40 Tex.Crim. Rep.; and Whaley v. State, 9 Texas Crim. App., 306.
Examining some of the cases upon which this conclusion is based, we find that they deal with instances in which not only the idea of "sudden passion" is embraced, but also that in which the idea is conveyed to the jury that the provocation must arise at the time of the commission of the offense. The principles controlling the cases, however, seem not different from those which operate under the present facts. Quoting from one of the earlier cases, namely, Eanes v. State, 10 Tex.Crim. Rep., we reproduce these remarks of Presiding Judge White:
"The general rules with regard to ordinary cases of manslaughter are modified necessarily by our statute in permitting this character of defense. It is expressly provided that `insulting words or conduct of the *Page 170 person killed towards a female relative of the party guilty of the homicide,' (Penal Code, Art. 597, subdiv. 4) shall be deemed an adequate cause to reduce a homicide from murder to manslaughter. Not only so, but the statute further provides that such cause shall be deemed sufficient if it is made to appear `that the killing took place immediately upon the happening of the insulting conduct or the uttering of the insulting words, orso soon thereafter as the party killing may meet with the personkilled, after having been informed of such insults.' Penal Code, art. 598. Thus, it will be seen that one of the principal ingredients or elements of ordinary manslaughter, viz.: `that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation' (Penal Code, art. 594), is not applicable to a case where the insulting words or conduct were not indulged in in the presence of the slayer, for he may kill on the first meeting after learning that the provocation of which he personally knew nothing, had been committed. Up to the time of this first meeting, the law prescribes no limit for the subsidence of the passion supposed to be engendered by the information received."
By the terms of Article 1133 of the Penal Code, when the ground stated above is relied upon, it must appear that the killing took place immediately upon the happening of the insulting conduct or the uttering of the insulting words, or so soon thereafter as theparty killing may meet the party killed after being informed ofsuch insults. Commenting upon this, the court, in Niland's case, (19 Texas Crim. App., 147) says:
"Thus it will be seen that one of the principal ingredients or elements of ordinary manslaughter, viz., `that the provocation must arise at the time of the commission of the offense and that the passion is not the result of a former provocation,' is not applicable to a case where the insulting words or conduct were not indulged in in the presence of the slayer."
Having this in mind, the instructions such as we have quoted from the court's charge, that is, that he (the accused) must act under the immediate influence of sudden passion; that the killing must be directly caused by the passion at the time of the homicide; that if the jury find that the facts and circumstances were sufficient to produce such a state of mind in a person of ordinary temper, have no appropriate relation to the questions to be determined by the jury. As indicated in Stewart's case, supra, the language used is calculated to confuse the jury rather than to lead their minds directly to the question at issue. In a case where the facts are like those before us, and objections are specifically made to embrace such matters in the charge, they should be eliminated.
In the part of the charge quoted in this opinion, the jury was told to consider all the facts and circumstances in evidence in determining whether the facts and circumstances were sufficient to produce *Page 171 such state of mind in a person of ordinary temper. The record is bare of any circumstance which would raise the issue of manslaughter save that of insulting words or conduct. Whether insulting words or conduct were adequate cause is not a question for the jury. It was their office to determine whether the appellant had been informed of the insulting words or conduct by the deceased and if he believed the information to be true, then adequate cause existed as a matter of law. In Redman's case,52 Tex. Crim. 595, the sole ground of provocation was insulting words or conduct, and an intimation in the charge that there may have been other causes was held erroneous. The court said:
"Appellant insist that said paragraph is erroneous in that it presents other than insulting words concerning a female relative, whereas there was no evidence suggesting any other provocation than insulting words concerning a female relative of appellant. This criticism is correct."
The wisdom of addressing the charge in all cases to the issues that arise upon the trial commends itself to all. This has often been emphasized in the decisions of this court dealing with the law on manslaughter where the only ground of provocation was one of those named in the statute as adequate cause as a matter of law. See Attaway v. State, 41 Tex.Crim. Rep.; Warthan v. State, 41 Tex.Crim. Rep.; Connell v. State, 45 Tex. Crim. 162; Branch's Ann. Tex. Penal Code, Sec. 512. In instances in which the accused, by his exceptions to the charge and special charges affirms and insists that he depends upon no other matter to reduce the grade of homicide than insulting words or conduct to a female relative and the evidence suggests no other, the court should frame his charge in accord with that view.
Because of the error pointed out, the rehearing is granted, the affirmance set aside, and the judgment of conviction reversed and the cause remanded.
Reversed and remanded.
ON REHEARING. June 21, 1922.