The appellant was convicted of murder, and his punishment assessed at seven years in the penitentiary.
The record discloses that the appellant and Foster Bell were jointly indicted in Austin County for the offense of murdering Robert Schaffner by shooting and killing him with a gun on or about the 5th day of September, 1922; and that on change of venue the appellant was convicted of said defense in Williamson County. The record further discloses that the deceased, Robert Schaffner, and Tommy Bell had engaged in a fight prior to the homicide, and that thereafter the Bell boys and other parties acting with them engaged in a fight with the deceased and his father, F. C. Schaffner, in the town of Sealy with the result that Robert Schaffner, his father, F. C. Schaffner, and two of the *Page 638 Bell boys were killed. It was the contention of the state that the appellant, acting with the Bell boys and other parties, was an actual participant in precipitating the fight and took an active part therein, and that his acts and motives were prompted by malice toward the said F. C. Schaffner, deceased. While the appellant failed to testify in his own behalf, he defended upon the ground, and introduced testimony to the effect, that he was not acting with the Bell boys and others in the fight, but, on the contrary, that he was standing near the scene of the difficulty engaged in a conversation with one Will Phenice when the fight began and suggested to said Phenice that they separate the parties, and that this was his only connection with the affray.
Appellant's counsel rely upon two propositions for a reversal of this case. In bill of exception No. 1 the appellant complains of the action of the court, after the witness Will Phenice had testified favorably to appellant's defense and the state, on cross-examination, had proved by said witness that he had been indicted for theft, in refusing to permit the witness, on re-direct examination, to testify and explain the circumstances of said indictment for the purpose of removing the imputation of untruthfulness that had been cast upon his testimony, and for the purpose of reinstating the witness before the jury. Upon objection by the state, the court refused to permit said witness to make the explanation, but offered to permit said witness to testify as to what became of the charges against him. We are of the opinion that the learned trial judge fell into error in refusing to permit this witness to explain said charges against him and to reinstate himself, if he could, before the jury by removing the cloud placed upon him and his testimony by reason of said charges. Tippett v. State, 37 Tex. Crim. 186; Wallace v. State, 82 Tex.Crim. Rep.,200 S.W. 407; Skinner v. State, 251 S.W. 810; Randell v. State,278 S.W. 210.
The appellant also complains of, and at the proper time objected and excepted to, the following portion of the court's charge on manslaughter:
"(b) The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by the passion arising from some other provocation, or a provocation given by some other person than the party killed or other persons acting with the party killed."
The appellant contends that this charge was too restrictive in that it did not permit the jury to take into consideration the *Page 639 acts and conduct of F. C. Schaffner, Hauley Vireck, and other persons acting with them, but restricted the jury to the consideration alone of the acts and conduct of Robert Schaffner, deceased, while the evidence showed that the other parties were acting with him at said time. We are of the opinion that the appellant's contention will have to be sustained, and that the learned trial judge should not have restricted the jury to the provocation of Robert Schaffner alone but should have instructed them to consider the acts and conduct of others who were acting with him at the time of the homicide. This issue was clearly raised by the testimony introduced in behalf of appellant to the effect that Robert Schaffner, deceased, and his father, F. C. Schaffner, deceased, Ernest Schaffner and Hauley Vireck were acting together in the fight. This court has held many times that it was error to restrict a manslaughter charge to the acts and conduct of one party alone where others were acting with such party at said time. Byrd v. State, 39 Tex.Crim. Rep., 47 S.W. 721; Stacy v. State, 48 Tex.Crim. Rep., 96 S.W. 327; Brown v. State, 54 Tex.Crim. Rep., 112 S.W. 80; Garcia v. State, 70 Tex. Crim. 485, 156 S.W. 941; House v. State, 75 Tex. Crim. 338,171 S.W. 210; Claxton v. State, 288 S.W. 449.
For the errors above discussed, the judgment of the trial court is reversed and remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING BY STATE.