Appellant was charged with murder and convicted of manslaughter; punishment fixed at confinement in the penitentiary for a period of two years.
The appellant made some complaint of the charge on manslaughter. Without discussing it, it appears from the record that the conviction was for manslaughter and the lowest punishment was assessed. The rule is well settled that under such circumstances, ordinary defects in the charge on manslaughter will not work a reversal. Munos v. State, 58 Tex. Crim. 147; Neyland v. State, 79 Tex.Crim. Rep., 187 S.W. Rep., 196. We find nothing in the charge in the instant case which justifies a deviation from this rule.
The district attorney, in his argument, said: "Cooper and Woodsworth had an agreement to take two prostitutes down the valley to practice their prostitution, when they had just as well have carried out these acts of prostitution in El Paso in some back yard or other place."
Woodsworth and the appellant were together at the time they met the deceased and his wife in a cafe at Juarez; that they had become acquainted in a gambling-house in Juarez in which the appellant was a player and the witness a faro bank dealer. Woodsworth said that he and the appellant had been in Juarez during the afternoon; that at the Tivoli they had lunch with some ladies whom they met there and made arrangements with them for that night. They were going out on a road down the valley, but not to any particular place. The girls were to meet them at the Glenn Hotel. He described the location of *Page 76 the Glenn Hotel and said that they were to meet the girls in the lobby. The arrangements had been made at Juarez while the parties were eating dinner about three or four o'clock in the afternoon. The girls were going across the river and agreed to meet the appellant and the witness there in the lobby of the Glenn Hotel. The witness said he thought the girls were rooming there; that he understood them to say that.
The bill of exceptions complaining of the argument is qualified with the recital of these facts and the statement that he regarded the inference drawn by the district attorney that the women were of immoral character not unjustified and refused the request of the appellant to instruct the jury to disregard the argument. We are not prepared to say that the trial judge was wrong in his conclusion.
Appellant and deceased lived at the same hotel in El Paso. In the afternoon before the homicide, they met at a cafe in Juarez, Mexico, where the deceased and his wife were in the wine-room. The party left Juarez and went on the street car to El Paso, where later, at the Club House Cafe, the homicide took place. The witness Woodsworth was appellant's companion. While at the Club House Cafe, the appellant and Woodsworth were sitting at the same table with the deceased and his wife. The deceased was intoxicated and an altercation took place. Appellant left the cafe, but later returned and called to the deceased, who walked out of the door into the vestibule and was shot by the appellant. There was also evidence that the appellant had been drinking.
A police officer described the altercation between the appellant and the deceased in the cafe and related the fact that appellant went away and returned. From his testimony it appears that the deceased was pacing back and forth inside of the cafe, and as soon as appellant stepped upon the curbing, the deceased rushed out of the door and said something which the witness claimed was not audible; that he made a movement with his hand which the witness interpreted as indicating an intent to reach for a pistol, whereupon the shot was fired.
According to the State's testimony, no hostile demonstration was made by deceased, but he was called to the door of the cafe and shot by appellant.
The court instructed the jury in these words:
"If from the evidence you believe that the Defendant killed the said Morris Kiely but further believe that at the time of so doing the deceased had made or was about to make an attack on him, or that it reasonably appeared to the Defendant, from his standpoint at the time, that the deceased had made or was about to make an attack on him, which, from the manner and character of it caused him to have a reasonable expectation or fear of death or serious bodily injury and that acting under such reasonable apprehension or fear the Defendant killed the deceased, or if you have a reasonable doubt thereof, you will acquit the defendant." *Page 77
Complaint is made because the court did not respond to appellant's exception and instruct thus:
". . . if from the evidence the jury believes defendant killed the said Morris Kiely, but further believes that at the time of so doing the deceased had come out of the Club Cafe and by his acts or conduct had led defendant to believe, or it reasonably appeared to defendant from his standpoint at the time that deceased had made or was about to make an assault upon him, which from the manner and character of it caused him to have a reasonable expectancy or fear of death or serious bodily injury, and acting under such reasonable apprehension or fear defendant killed the deceased, or if the jury has a reasonable doubt thereof, they would acquit the defendant."
In the light of the facts developed upon the trial, we are unable to discern such distinction between the charge given and that suggested as would materially affect the rights of the accused.
We have found nothing in the record which warrants a reversal. The judgment is therefore affirmed.
Affirmed.
ON REHEARING. January 10, 1923.