Appellant was convicted of murder in the second degree, and his punishment assessed at twenty years in the penitentiary, from which he appeals.
There is but one question that need be considered. Appellant, his brother, and his maternal uncle went to the house of deceased in the morning, armed, waited his return from the village, and killed him as he was coming up his front walk. Deceased was the father of appellant and his brother. The defense was self-defense, and insulting and brutal conduct to their mother. On the latter ground of defense, the court charged the jury, that "insulting words and conduct to a female relative does not authorize a defendant to go and seek the party so offending for the purpose of having a difficulty with him, with the intention of killing him or doing him some serious bodily harm; and if a person should do so, notwithstanding the insulting words or conduct, the killing would not for that reason be reduced from murder to manslaughter, if it would be murder in the first instance." It is evident, that under this charge the jury could not have found a verdict less than murder, even though they found as a fact that appellant had been roused to desperation and passion by the gross insult and injury offered to his mother, and had killed his father on the first meeting. The charge is not the law. It is not true that one whose female relative is insulted commits murder because he seeks and kills the offender; on the contrary, the very fact that he seeks him and brings on the difficulty with the intent to kill may be the most cogent evidence of the existence of that condition of the mind necessary to reduce the homicide to manslaughter. To sanction the doctrine asserted in the charge — that such hostile meeting must be always casual, and not sought for and intended — is practically holding that passion that can be controlled makes the homicide manslaughter, while passion that can not be makes it murder. It can not be asserted, as a question of law, that any character of meeting, whether casual or intended, makes the homicide murder. The controlling question is, whether the homicide was the result of passion upon adequate cause, or was done deliberately and upon a premeditated design; and that is always a question of fact upon which the jury alone may speak.
In the case at bar the evidence for the State shows, that appellant, on the 26th of January, 1892, then residing with his father, together with *Page 57 his brother and maternal uncle, having prepared arms and ammunition, went home and awaited the return of the father from the village, where he had gone to sell a load of cotton; that the mother, the wife of deceased, went over to her brother-in-law's house about the time her husband was expected back, and stood in the house looking at her husband returning to his home. The husband and wife had lived together for twenty years; they had eleven children, the youngest 3 years of age. Just after going into the gate, deceased was riddled with bullets by his two sons and brother-in-law, and instantly killed. It was shown by the evidence of the mother, that immediately after the killing appellant went over after her and told her, "to come home; he is dead;" and on the way home told her he "killed his father, and had to do it;" that when his father came he went on the gallery to speak to him, and his father shot at him. Mrs. Halliburton, the mother of appellant, also testified fully to every brutal act and grossly insulting conduct to herself the day before the killing, coupled with threats against her own life and that of her sons, who lived in the house with their parents, all of which she at once communicated to them. The evidence on the part of the State shows the ill treatment occurred a week before the killing, and strongly supports the theory that the homicide was deliberately planned and executed, and that the wife was an accomplice, who knew of and concurred in the plot against the life of her husband; that she was on the watch that morning for the conspirators, who came by a back way, through the field, and, as soon as they arrived, she carried her young children, seven in number, over to her brother-in-law's to remove them from the danger of the anticipated fight between her husband and sons; that they coolly awaited and killed him, cross-firing upon him from the front windows as he came through the gate and started up the sidewalk of his own home. If the theory of the State was sustained, there is no evidence of passion or self-defense; it was murder upon express malice; but the jury found that the homicide was but murder in the second degree, though it was committed under circumstances strongly illustrating premeditation and malice, and by sons upon a father, a relationship which would ordinarily deprive the occurrence of the considerations of human frailty and passion that the law throws about parties not so related. To have reached such a verdict the jury must have believed appellant was acting under the impulse of uncontrollable passion on account of insulting conduct to his mother, and, if so, they were compelled, under the charge, to find the appellant guilty of not less than murder. The judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring. *Page 58