On a previous day of this term the judgment herein was reversed and remanded for another trial for reasons stated in the original opinion. The State moves for a rehearing and, among other things, urges error in the opinion rendered wherein it was held that the trial court erred in not charging the jury that all the facts and circumstances of the case should be looked to in determining whether adequate cause existed. One of the statutory grounds of adequate cause did exist, and this was uncontroverted *Page 671 and upon this the court predicated his charge, excluding all other facts and circumstances. It is contended that inasmuch as the jury found the fact that adequate cause did exist by their verdict in finding appellant guilty of manslaughter, therefore it would have minimized defendant's defense on the submitted adequate cause if they had been instructed to consider all the other facts and circumstances in making up their verdict. To this contention we can not agree. The facts are, we think, sufficiently stated in the original opinion, but to recapitulate those facts to some extent we deem proper here.
Appellant and the deceased had been warm, personal friends for years. On the night previous to the homicide he had seen personally the insulting conduct by deceased to his wife and engaged in a personal difficulty with him at the time. The next day the deceased passed his house in the manner indicated in the statement in the original opinion, which was during appellant's absence, and this was called to his attention by his wife. Subsequently, the same day deceased wrote the note set out in the original opinion reiterating the insulting conduct with an offer to the wife to carry her away, offering her money, etc. This was communicated to appellant and a little later in the evening the fatal difficulty occurred. This difficulty occurred at the first meeting after he had read the note written by deceased to his wife. Now, the contention of the State is that this being an adequate cause, and the jury having convicted of manslaughter, the law was complied with fully and appellant could not complain, and in fact that had the court given the charge to the jury to consider all the other facts and circumstances, it would have minimized his defense of manslaughter as against murder. This question came before the Supreme Court of Georgia in Biggs v. State, 29 Ga. 723, and was so completely met and answered that we reproduce the following quotation from that case. That opinion was by one of the greatest lawyers, who has had the honor to grace the bench in any State or sit upon any court in the Federal Union, Judge Lumpkin. He says:
"The husband had heard and seen the personal indignity offered his wife the night before. He permitted Parish to escape, with threats of punishment should he remain in the city. The very next morning, at the breakfast table, he unblushingly resumes his seat in the immediate neighborhood of his intended victim. Was it human to keep cool in such a situation? To see the man who had attempted to desecrate the family altar, the night before, seat himself within two chairs of his wife! And was it not right and proper, in order to account for his violence, to give in proof to the jury the occurrences of the preceding evening? To shut out the scene which transpired in the bedchamber is to deprive the jury of the power of appreciating the transport of passion kindled in the bosom of Biggs by the presence of Parish." *Page 672
The Biggs case perhaps may be considered the leading case on this subject, and has been followed by this court notably since Miles v. State, 18 Texas Crim. App., 156. Under the contention of the State appellant would be deprived of the previous occurrences before the jury and their effect upon his mind in viewing the transaction at the time of the homicide. Perhaps one of the strongest reasons why the mind was infuriated by the note was the fact of the occurrences on the previous evening and the intermediate occurrences between that occasion and the time of the homicide. Had the jury been instructed with regard to these extraneous matters which necessarily entered into the mind of the appellant, it is possible and fully probable that his punishment, although convicted of manslaughter, might have been less than the five years, the maximum penalty which was given him by the jury. This evidence certainly had a tendency to enhance the passion. It was the beginning and cause of the passion, and the circumstances occurring subsequently added to this passion, and while he could not rely upon the occurrences of the previous night as a basis of manslaughter, because the insulting conduct had occurred in his presence and had passed, yet in viewing the transaction at the time of the homicide these circumstances were of the most cogent and terrific force. It will be understood that in offenses where the punishment is graduated as it is in manslaughter from two to five years, there are two serious questions always to be taken into consideration both by the court and the jury. This graduated punishment was placed in our law by the law making power for the purpose of enabling the jury to minimize or magnify the punishment as the attendant circumstances of the homicide might manifest. If the jury had been properly instructed in this respect the punishment might have been two years; it at least might have been under the maximum punishment of five years. The two considerations above alluded to always to be considered, in view of our law where graduated punishment is set out, are: First, any fact that would lead to an acquittal becomes of the gravest importance to an accused and the proper and correct enforcement of the law, and the elimination of which fact would be seriously detrimental to the enforcement of the law, as well as the legal rights of a party accused of crime. The omission of a proper charge in regard to an extenuating circumstance should be and is always held to be reversible error. This proposition of law is not to be questioned. The second proposition is that whether it leads to an acquittal or not, if the fact leads to or would have the effect of probably minimizing the punishment below the maximum, then it is of equal importance as if it would lead to an acquittal. A party accused of crime under our law is entitled to all the facts which go in extenuation of the offense, although he may be guilty, and, of course, is necessarily, as a legal proposition, entitled to a charge submitting those facts to the consideration of the jury. In this case the court charged the jury as to *Page 673 the insults set out in the note, but other facts were there of strong probative force showing the previous insult and the condition in which it left the mind of the accused. It is unnecessary here to repeat those facts. Now, the court should have charged the jury not only with reference to the insult conveyed by the terms of the note, but also to instruct them to consider the previous facts in passing upon the mental status of the party. His mind had already been inflamed to the point where he was entitled to a conviction only of manslaughter had the killing occurred the night previous, but the subsequent day additional insult is added to the previous injury. The mind of appellant was already inflamed by this conduct, as shown by the testimony. Therefore, we say that appellant was not only entitled to a charge submitting all these facts, but it was clearly error not to give such charge, and as said by Judge Lumpkin: "Was it not right and proper, in order to account for his violence, to give in proof to the jury the occurrences of the preceding evening?" The Biggs case has formed a basis of a long line of decisions in this State. Not only so, but the statute itself by giving the graduated punishment, and the circumstances that attend the homicide under such circumstances is in direct consonance with the doctrine laid down by Judge Lumpkin; and whether the Biggs case had ever been written, the law would have been the same. Judge Lumpkin touched this with the same master hand with which he always touched great questions, and our court has followed with an unbroken line of decisions the same principle. Miles v. State, supra; Wadlington v. State, 19 Texas Crim. App., 266; Johnson v. State, 22 Texas Crim. App., 206; Howard v. State, 23 Texas Crim. App., 266; Bonnard v. State, 25 Texas Crim. App., 173; Orman v. State, 24 Texas Crim. App., 496; Hawthorn v. State, 28 Texas Crim. App., 213; Cochran v. State, 28 Texas Crim. App., 422; Bonner v. State, 29 Texas Crim. App., 223; Bracken v. State, 29 Texas Crim. App., 362; Baltrip v. State, 30 Texas Crim. App., 545. See also the cases cited in the original opinion. One of the last cases, as well as one of the best considered cases decided by this court laying down the proposition here asserted, is found reported in 54 Tex. Crim. 477, McHenry v. State. We might enter into a further discussion of this matter amplifying authorities and reasons, but suffice it to say that any fact that would lead to an acquittal of the party or to an extenuation of the punishment if guilty, is a potent fact always admissible, and whenever the fact is admitted the law applicable to the fact should be given in charge to the jury.
The other questions we do not care to discuss.
For the reasons indicated the motion for rehearing is overruled.
Overruled.
Prendergast, Judge, not sitting.
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