We think on further reflection that there was error in the conclusion reached in affirming the judgment in this case and that a rehearing should be granted and the cause remanded for another trial.
The fourteenth and fifteenth paragraphs of the court's charge are as follows: "14. Again, if you find and believe from the evidence that the defendant, E.L. Barbee, on the night previous to the homicide, was informed by his wife that the deceased, Lon Jenkins, had some time in July of the previous year, at the home of defendant, insulted his said wife by making improper proposals to her and by placing his hands upon her person; and if you further believe from the evidence *Page 140 that defendant believed the statement thus made to him, if you believe same was made to him; and if you further believe from the evidence that the defendant was thereby aroused to such degree of anger, rage, sudden resentment or other violent emotion of the mind as rendered his mind incapable of cool reflection, and that at the first meeting with the said Lon Jenkins after being informed of such conduct on the part of the said Jenkins towards his, defendant's wife, and while under the influence of such passion and prompted thereby and not in the defense of himself against real or apparent danger from said Jenkins, he shot with a pistol and thereby killed said Jenkins, such killing would be manslaughter.
"15. Also, if you find and believe from the evidence that the defendant, on the night previous to the homicide, was so informed of the said conduct of the said Jenkins toward his wife; and if you further believe from the evidence that on the occasion of the homicide the defendant approached the deceased and inquired of him in reference to said conduct of said Jenkins toward defendant's wife; and if you further believe from the evidence that thereupon the deceased used violent language and threatened him, defendant, with bodily injury; and if you further believe from the evidence that by reason of the said information, if any, so received from his said wife, and by reason of the language and conduct of the deceased on said occasion, if you find there was any such language or conduct on said occasion, the defendant's mind was aroused to such a degree of anger, rage, sudden resentment, terror or other violent emotion of the mind as rendered it incapable of cool reflection, and that while under the influence of such passion, and prompted thereby, and not in the defense of himself against real or apparent danger from said Jenkins, as the issue of self-defense is hereinafter submitted to you, defendant shot and killed said Jenkins, such killing would be manslaughter." We think there could be no doubt that the last paragraph of the court's charge copied above is erroneous in that before appellant would be entitled to an acquittal of murder in the second degree, and a reduction of his offense to manslaughter, the jury were required to believe not only the affirmative of the issue of insulting conduct towards his wife, but further to find that the deceased had used violent language to and threatened appellant with bodily harm; and further that under such charge before the jury were authorized to find that such violent language and threatened injury would reduce the offense to manslaughter, they must further believe the insulting conduct towards appellant's wife. We believe further that the two paragraphs of the court's charge are in irreconcilable conflict. Under the fourteenth paragraph insulting conduct toward appellant's wife is made, as a matter of law, if believed, adequate cause, and the jury are instructed that if his mind was aroused to sudden anger and on the first meeting he killed deceased that the offense would be manslaughter. Whereas, in the next paragraph of the court's charge it is required that both insulting conduct *Page 141 and the violent language and threatened injury must be found to be true. Wherever the law makes any given fact adequate cause, a defendant is entitled to a positive and unequivocal instruction that if such fact is proven, it is adequate cause. And where any one or more issues are raised by the evidence either of which, if found to be true, would as a fact constitute adequate cause, the jury should be so instructed, and it is error to blend the two and require that the affirmative of both issues must be found. Hightower v. State, 53 Tex.Crim. Rep., and Casey v. State, 54 Tex.Crim. Rep..
We think in view of all the facts that this charge may and probably did contribute to and bring about appellant's conviction of murder in the second degree, and being convinced that it is erroneous we think we ought to grant a rehearing, which is here done, and the case is reversed and the cause remanded for another trial.
Reversed and remanded.
McCord, Judge, not sitting. — Reporter.