1. I can not concur in the opinion of the court holding that there was error in the charge on manslaughter in that said charge was too restrictive or in its holding that if it be conceded there was such error, that since the jury found him guilty of no higher grade of offense than manslaughter, that such error should be held harmful. It will be noted that the court directly instructed the jury that if the killing was done "under the influence of passion aroused by insulting words or language (verbal or written) or conduct of the said Ed Cantrill toward the defendant's wife, then you will find the defendant guilty of manslaughter and assess his punishment at confinement in the penitentiary not less than two nor more than five years." Again, the court had instructed the jury as follows: "The following is deemed adequate cause: Insulting words or conduct of the person killed toward a female relation of *Page 669 the party guilty of the homicide." In this case it appears beyond doubt or question that the killing occurred on the first meeting after appellant was advised of the receipt by his wife of the note copied in the opinion. We have a case, therefore, where the uncontradicted evidence showed that the killing was on the first meeting, and where the jury have found the existence, under proper instructions, of a cause deemed and definitely fixed as adequate by the law. It has never been held, I think, certainly it ought never to be held, that it is necessary in any case to charge the jury that all the facts and circumstances of the case may be looked to with a view of determining whether adequate cause exists, except where the facts relied on as constituting adequate cause are not made so by express law, but such a charge should only be given and is only required to be given where the facts occurring at the date of the homicide do not, as a matter of law, constitute adequate cause, but where for their proper interpretation it is essential that the jury should, in finding the fact of adequate cause, view the instant facts occurring at the time of the homicide, in the light of all that had occurred. Where the facts relied on are equivocal, uncertain, in doubt or not manifestly such as in themselves and of themselves to constitute adequate cause, then it is often important that the jury should be authorized and directed that in passing on the issue as to whether in fact such acts and conduct constitute adequate cause they may look to all the facts and circumstances in evidence before them with a view of deciding whether in fact there is adequate cause. But where the facts which must be relied on to reduce the offense to manslaughter are, as a matter of law, adequate cause, and the jury are so instructed, it would seem idle to further instruct them that in determining whether such facts constitute adequate cause they might look to all the other facts and circumstances in the case. Such a charge would rather minimize the instruction of the court that the given fact or facts did constitute adequate cause, and instead of being beneficial to a defendant might, under some circumstances, be confusing and hurtful.
2. Again, I think it evident in this case that if it should be conceded that the charge of the court in the respect pointed out was erroneous, that since the jury found appellant guilty of manslaughter such error would not constitute any ground for reversal. They have found under the instructions given that appellant was guilty of manslaughter. The only object and end to be attained by the instruction which it is claimed the court should have given was to enable the jury to fix and determine whether the killing, if unlawful, was manslaughter, or of some higher grade. When with reference to the charge of the court they have determined that the offense is manslaughter, on what basis of fair reason can it be contended that the failure to give a charge whose only office was to enable them to determine this fact, which they had already found favorable to appellant, was harmful to him? It is not a case where any evidence was rejected *Page 670 which would put him in a more favorable light. We have not infrequently held that where notwithstanding the jury had found a given state of case or fixed the offense of a given grade, that where testimony admissible in his behalf had been rejected, which, if admitted, would have put him in a more favorable attitude that where less than the smallest term had been allotted him, that this might constitute such error for which his cause might be reversed. But it ought never to be applied to such a case as we here have.
3. Nor can I agree to the ruling of the court in respect to the matter of threats. It is not claimed that there were any threats proved in the case unless such proof is found in the letter or note copied in the opinion. It was the contention of appellant in the court below, and it is his contention here, that this letter raised, as a matter of law, the issue of threats. I do not think so. It occurs to me that the letter fairly construed does not fairly or of necessity show threats; that it contains no suggestion of any offensive action on the part of deceased, but is rather consistent with the idea that if again attacked he would not again run. It may be that considered with reference to the other facts and circumstances in the case that the jury might properly have interpreted it as raising the issue of threats. Being a written instrument, in a measure it speaks for itself, and yet its true intent is to be interpreted in the light of the attendant circumstances. If there had been an instruction requested charging the jury that if they believed that the true intent of this note, construed in the light of all the circumstances, was to threaten the life of appellant, that in such event they would consider his case under the law of threats as applied to the doctrine of self-defense, but this is not the contention here. Appellant's contention is that in itself and of itself, construed in the light of the other circumstances, that the letter contained a threat. Personally, I would not so construe it even when viewed in the light of all the circumstances, and this evidently was the opinion of the learned trial court. Indeed, I am in doubt as to whether the issue as to the letter containing a threat should have been submitted to the jury at all, but if this question had been raised I am not sure but that there was evidence in the record sustaining such a contention.
ON REHEARING. January 11, 1911.