On a former day of the term the judgment herein was affirmed. Motion for rehearing is asked on two propositions: First, the court was in error in holding the admission of the testimony of Sue Goodwin was not sufficiently erroneous to require a reversal of the judgment, and, second, the court was in error in giving a special instruction at the instance of the State in regard to the question of manslaughter. The original opinion holds that the testimony of Sue Goodwin was inadmissible and erroneous, but not of sufficient importance to require a reversal. We have carefully reviewed this question in the light of argument and authorities cited, and are of opinion the contention of appellant is well taken. Where illegitimate evidence is admitted and brings about an illegal conviction or tends to do so, its admission is hurtful and injurious, or where, conceding the guilt of the accused, the admission of such evidence enhances or tends to enhance the punishment and a higher punishment than the minimum penalty is awarded, the error is of reversible nature. The evidence pertinently raised the issues of manslaughter and self-defense. The evidence of Sue Goodwin tended very strongly to prejudice the minds of the jury against appellant, and was of a hurtful character. The effect of her testimony is that she and Hollie Thompson, and Florence Davis, negro women of more than doubtful reputation for chastity, accompanied by appellant, the two Weavers and others, spent Sunday afternoon on a fishing excursion, and carried with them whisky. We deem it unnecessary to go further into the details of their fishing excursion and what there took place. The difficulty bringing about the prosecution of appellant occurred Monday morning about two o'clock at or near a railroad station, and was not connected with the Sunday evening matters. The fact that appellant was consorting with negro prostitutes Sunday evening on a fishing excursion and drinking whisky while so engaged was in no way connected with the subsequent difficulty between appellant and deceased, and certainly placed appellant in a disadvantageous light before the jury. That evidence did not prove or tend to prove any issue in the case, and its only effect would be to prejudice. The verdict of the jury should be *Page 573 predicated alone on competent and legal evidence. In support of this conclusion of this court we cite Tyson v. State, 14 Texas Crim. App., 388; Logan v. State, 17 Texas Crim. App., 50; Carter v. State, 23 Texas Crim. App., 508; Dixon v. State, 15 Texas Crim. App., 271; Coker v. State, 35 Tex.Crim. Rep.; Price v. State, 43 S.W. Rep., 96; Nix v. State, 45 Tex. Crim. 504, 74 S.W. Rep., 764; Watson v. State, 50 Tex. Crim. 171, 16 Texas Ct. Rep., 587; Cole v. State, 48 Tex. Crim. 439, 88 S.W. Rep., 341; Glenn v. State, 76 S.W. Rep., 757; Luttrell v. State, 40 Tex.Crim. Rep.. This evidence, as stated in the original opinion, was erroneously admitted, and a more careful review of the question convinces us that it was materially so, and its admission was prejudicial. Some reason of the correctness of this statement may be found in the fact that the jury awarded a term of fifteen years in the penitentiary, which was far in advance of the minimum punishment for murder in the second degree.
The second contention brings in review the charge asked by the State and given by the court, which is in the following language:
"If you find there was a previous difficulty in the house between defendant and deceased in which defendant shot deceased in the arm, then whether the circumstances of such previous difficulty may be considered by you as constituting or contributing to adequate cause for the passion, if any, under which defendant acted at the time of the alleged fatal shooting at the train, will depend upon whether defendant or deceased was at fault in such previous difficulty; if defendant shot deceased in such previous difficulty to protect himself from an unlawful attack with a knife, which it reasonably appeared, as viewed from his standpoint, that deceased was about to make upon him, then defendant was not at fault in such previous difficulty, and his passion, if any, engendered by such previous difficulty can be considered by you for such purpose, but if he shot deceased in such previous difficulty while deceased was not advancing on him or doing any other act which of itself or by words accompanying it reasonably justified the defendant in believing he was in danger of such attack by deceased, then in such latter case defendant would be at fault in such previous difficulty and no amount of passion produced in defendant's mind by such wrongful act of his own could constitute adequate cause or be considered as contributing thereto in determining the issue of manslaughter. But the jury will not understand this instruction as having any application to the issue of self-defense or as limiting or in any sense qualifying the instructions on that issue as given in the main charge; that is to say, that notwithstanding the defendant was at fault in the previous difficulty (if you should find he was at fault), yet if he was afterwards unlawfully attacked at the train, his right of self-defense against such attack would not be lessened or limited by the previous occurrences at the room, and instructions on the law of *Page 574 self-defense given you in the main charge would have full and unqualified application."
We are of opinion that appellant's contention is correct; that this charge is on the weight of evidence and an undue limitation and restriction upon the issue of manslaughter. It singles out facts surrounding the first difficulty, and gives a special charge upon those stated facts, and places that issue with undue prominence before the jury. This is error. Bryant v. State, 16 Texas Crim. App., 144; Muely v. State, 31 Tex.Crim. Rep.; Stone v. State, 22 Texas Crim. App., 185; Stockman v. State, 24 Texas Crim. App., 387; Howell v. State, 18 Texas Crim. App., 348; Carter v. State, 39 Tex.Crim. Rep.. If the question of manslaughter was in the case, arising out of the first difficulty and not in the second, then it was and becomes a question of cooling time. There elapsed about twenty to thirty minutes between the first and the second difficulty. Appellant and some others were sleeping in a side room to a saloon at or near the railroad station. The alleged assaulted party and another came to the house and undertook to get in, and were finally admitted. Appellant's testimony is to the effect that when the assaulted party entered the room he had an open knife in his hand and was advancing upon him when he fired, striking his adversary in the right arm. There was a separation between the parties, the assaulted party threatening to "see him later." The train reached the station some twenty to thirty minutes after the first difficulty. Appellant was entering the train from one side and his adversary from the other when the second difficulty occurred, resulting in the death of deceased. The issues of manslaughter and self-defense were clearly raised under the facts in regard to the first difficulty, and these issues were also suggested by the facts of the second difficulty, as we understand this record. Be that as it may, the issues of manslaughter and self-defense were clearly raised by the facts attending the first trouble. If appellant's mind became enraged beyond cool reflection by the facts of the first difficulty, although he may have been somewhat at fault, still this might not eliminate the question of manslaughter from the case. The question of cooling time was an important issue at this juncture. From the charge as given the jury may have considered the question of manslaughter only with reference to the last assault, and if they should ascertain that he may have been somewhat at fault in the first difficulty, they would give him the benefit only of manslaughter issue from the standpoint of the last difficulty, based upon the provocation arising at the time of the second difficulty, and especially would this appear to be so in the absence of a charge in reference to cooling time. The charge as given eliminated the testimony in regard to manslaughter arising out of the first difficulty, unless the jury should find that appellant was not at fault, without giving any instruction as to what amount of dereliction on his part would *Page 575 eliminate the theory of manslaughter. It has been well said that it is not essential that the overt act or demonstration be sufficient to justify or raise the issue of self-defense, but if in connection with other antecedent facts and circumstances it was sufficient to excite in the mind of a person of ordinary temper sudden passion rendering it incapable of cool reflection, then adequate cause would be produced sufficient to raise the issue of manslaughter, and the law of manslaughter would be the law of the case. Howard v. State, 23 Texas Crim. App., 265, 5 S.W. Rep., 231, and Halsford v. State, 53 Tex.Crim. Rep.. We deem it unnecessary to pursue this line of thought further as to the effect that this charge may have had not only upon the issue of manslaughter, but in unnecessarily encumbering the charge on self-defense. What has been said with reference to this charge is to call the attention of the trial court to the fact that if it is thought necessary to charge the law of manslaughter with reference to the former difficulty, then such charge must be appropriately given so as to embody the idea of cooling time, avoid the charge on the weight of evidence, and to properly guard in that connection the charge in reference to self-defense.
We are of opinion that the affirmance should be set aside, and the motion for rehearing granted, which is now done, and the judgment is reversed and the cause is remanded.
Reversed and remanded.
McCord, Judge, not sitting.