Appellant's motion for rehearing is short, and rests on but one proposition, viz: that we erred in holding that the trial court was not required to charge on murder without malice, because, — and here we quote from the motion:
"The great weight of the credible testimony not only raises the issue but conclusively shows that the defendant, at the time of the homicide, from circumstances immediately preceding it and occurring at the time, was laboring under great emotional stress occasioned by anger, fear and terror, arising out of adequate cause, which was calculated to and did render his mind incapable of cool reflection."
It thus plainly appears, and is so stated that appellant's reliance is entirely upon "circumstances immediately preceding" the homicide; and upon those "occurring at the time," — as evidencing his right to the charge on murder without malice. We *Page 71 specially call attention to this, because what is thus stated, — as the basis of appellant's contention, — is in exact accord with the position taken by Presiding Judge Morrow, in a paragraph of his opinion, of which in oral argument upon the motion appellant's counsel complained, in which paragraph we said:
"Apparently the contention that the statute mentioned should have been given as an instruction to the jury must rest upon the occurrences taking place at the time of the killing."
In said paragraph we were not attempting to lay down a rule of law applicable to other cases on other facts, but were simply saying that under facts such as here appear, there is nothing tangible supporting the idea of sudden passion, rage, terror, etc., arising from an adequate cause, — growing out of, arising from, or because of any occurrence taking place prior to the morning of the homicide.
The facts show that sometime after midnight on the morning of November 9, 1935, this appellant ordered deceased out of a cafe or beer tavern where appellant worked, and after some argument they went outside and had a fight in which appellant had the better of the difficulty; also it is claimed that deceased made some threats, this being about 2 or 3 o'clock A. M.; also that appellant claimed that he left the cafe in a car, went home, changed his shirt, and on his way back to the cafe deceased shot at him, the bullet lodging in the car door. No one else seems to have seen or heard this claimed shooting, though appellant showed several people the bullet holes in the car door. This seems to have ended the performances in the nighttime.
Appellant quit work at about 7:30 A. M. We note that one of appellant's witnesses swore that when appellant came in the cafe, after his fight with deceased, he had a pistol holding it in his hand under his apron. Appellant disclaimed having this pistol at all, but does claim after he got off work at 7:30 A. M. he went to his room and got his pistol and brought it to the cafe. At this point we might conjecture as to why appellant, armed with his pistol, came back to the cafe after 7:30 A. M. instead of going peaceably to bed as ordinarily would be expected of a man who worked at night and had been up all the preceding night.
That appellant returned to the cafe armed with a pistol at about 7:30 A. M. is undisputed. We let him testify at this point, because this is what his attorney claims shows his mental condition, and which is supposed to furnish a basis for appellant's motion for rehearing above referred to. We quote:
"I got the gun just to protect myself. I hadn't called the *Page 72 police for any protection up to that time. When I told my boss about the trouble we had had and he had shot at me, he told me to go call the law. It was his idea that I should call the law. I called the constable's department for protection. I didn't call the city police officers. That was inside of the city limits that we had had the trouble. I did not call the police for protection. I didn't figure on killing that boy; I just got the gun for protection. I figures on protecting myself and wouldn't have to call the constable's department."
The man to whose taxi stand appellant went, to act upon his boss' suggestion that he phone the officers, was a witness on this trial, and detailed the facts, including the killing, but his testimony is utterly devoid of anything supporting any theory of excitement or sudden passion on the part of appellant. This witness says that appellant came to his place about 7:30 A. M. and remained around there until the killing, which was about 9:30 or 10 A. M. He said this taxi stand was in sight of the barbershop where deceased worked, and same seems to have been on the route ordinarily traveled by deceased in going to work. Appellant went to this barbershop, apparently while waiting at the taxi stand, and inquired for deceased, but was told he had not come. The proprietor of said barbershop testified that appellant then told him that deceased was not going to shine any shoes that day, and when asked why, appellant said "Because they had some trouble that night, and anywhere he saw him that day he was going to kill Eddie, or Eddie was going to kill him." Witness asked appellant not to do this, and appellant replied: "Well, one just had to die." Neither this witness nor anyone else in the barbershop at the time said that appellant was excited or apparently under the influence of sudden passion, etc. The proprietor of said shop testified that appellant left some twenty or twenty-five minutes before he heard the shots of the killing. This man also testified that when appellant made the above statement, he looked like he was mad and intended to do what he said he was going to do.
Appellant was waiting at this taxi stand when deceased came along, not far from 10 o'clock. A sister of deceased said he came home the night before about 1 o'clock, went to bed and did not leave the house that night. Five eye witnesses to the killing testified; two, including appellant himself, testified for the defense, and three for the State, — and no one of these said appellant gave any evidence of sudden passion, etc. Appellant stoutly maintained that he shot deceased in self-defense. We let him speak: *Page 73
"On the morning of the shooting when I went over to that stand to use the 'phone, I had my gun with me at that time. I had been carrying that gun every since I went out to the house and got it. When that boy walked up there where I was I didn't make up my mind right then and there to kill him. No sir, I didn't make up my mind to kill him. I didn't kill that boy just because we had had a little fight the night before. I didn't kill him on account of the little trouble we had at the cafe that night. I did not have a grudge against him for what we had done that night. The only thing I killed him for was the movement — when he told me that he was going to kill me and made a grab at his pocket. He threatened to kill me at the cafe."
Again appellant said:
"When I fired that first shot I was just thinking about trying to stop him from killing me, because he had made an attempt to go into his pocket, I didn't know what he had."
One of the defense witnesses, Polite, swore as quoted in our original opinion that when deceased walked up to appellant just before appellant shot him, deceased seemed to witness to be smiling. These eye witnesses make out a complete case of cold-blooded murder. As above stated, appellant on the other hand made out a case of self-defense.
Inspection of Art. 1257c makes clear the proposition that no duty rests upon trial judges to submit murder without malice in homicide cases until and unless, — to quote said statute, "The facts present the issues of murder without malice." It is plain that, in the first instance, the trial court must pass on the question as to whether the facts before him present such issue. It is equally plain, under all the authorities, that this court will not reverse for the refusal of the trial court to so submit, — unless we believe such action an abuse of the discretion necessarily confided in the trial court in such matters. Our decision, if adverse to that of the court below, should be based on perceptible facts and not on conjectures.
The case of Riley v. State, 125 Tex.Crim. Rep., was reversed because in the charge of the court language had been used, borrowed from the old law of manslaughter, — which, in a case such as was that case, was upon its facts clearly wrong. That was a case in which the killing was claimed to be the result of alleged infidelity of the wife of the accused, and what was there said has no sort of application to a case on facts such as the one before us, as inspection will readily show. So also of the case of Privett v. State, 123 Tex. Crim. 86, which *Page 74 presents a case of a man of exceedingly low mentality, said by witnesses to have about the mind of a twelve year old child, who killed another to whom he attributed a course of insulting conduct toward his female relatives, culminating in a threat to kill the accused so he would have free access to his sister and sister-in-law. In both these cases reference is made to what we said in Butler v. State, 121 Tex.Crim. Rep., and in all three of the opinions referred to we but stated what is a plain and unanswerable proposition of law applicable to the case at bar as well as to those referred to, that is, that in a case where there is testimony raising the issue of murder without malice, the trial court should submit such issue to the jury.
There can be no debate over the proposition that appellant's own testimony can put such issue in a given case, but it must be put there by testimony and in no other way. Under the law prevailing in this State for many years antecedent menaces, former grudges, lying in wait, etc., etc., were provable as supporting express malice, and a killing was reducible to manslaughter when done in sudden passion arising from an adequate cause. We have in this case no suggestion of insult to female relatives or other kindred causes of passion. Whatever evidence there may appear in this record of a supposed threat by deceased, and its effect upon the charge, was completely furnished appellant in connection with his claim of self-defense; but this record, as we view it, is wholly devoid of testimony calling for a charge on murder without malice. The learned trial judge fully and fairly defined malice, and told the jury if they found that appellant was not actuated by malice, they could not assess a punishment of more than five years. The verdict assessed thirty years.
The motion for rehearing is overruled.
Overruled.