Appellant appeals from a conviction of the murder of Robert Burns, his punishment being assessed at twenty-five years in the penitentiary.
We have carefully read the statement of facts. We think the testimony, without any doubt, is ample to sustain the conviction. There is but one question to be discussed. Appellant claims that the evidence raised, and the court should have submitted, manslaughter. We are clearly of the opinion that the appellant's contention can not be sustained.
Appellant was a waiter in an all-night restaurant. Just after midnight the deceased, Burns, with a companion went into the restaurant to get a meal. They sat down at the eating counter. One of the State's witnesses, Mr. Conner, among other things, testified that the head waiter directed appellant to wait on Burns and his companion. Appellant said: "Let them son-of-bitches get out of here; I am not going to give them two orders." Burns said: "f__k them, Bob," and appellant replied: "You can not f__k me, you son-of-a-bitch, you haven't got enough money —" That appellant then went right in front of Burns, the narrow counter, about two feet wide only, separating them and said to Burns: "God damn you, if you want to start something, crack down." That other words passed between them and appellant whipped out a six-shooter, pointed it in the face of the deceased, when another one of his companion waiters told him to put up the gun and have no trouble. Very soon he snapped the pistol once in deceased's face, then immediately fired at him three times in succession, one ball striking him in the temple, going into his head and brains, which resulted in his death very soon afterwards. It appears that each used epithets towards the other, each calling the other with profane language a son-of-a-bitch. Appellant himself testified that during the wordy profanity and indecent language one towards the other, that deceased, Burns, said to him, "`You G_d d__n bastardly son-of-a-bitch, if you will come outside I will kill you,' and I said, `Burns, there is no use for any argument or any trouble,' and he said, `Yes, G_d d__n you, you bastard,'" and that when Burns said that it made him mad; he lost control of himself and shot and killed him. He says, "I shot him because he called me a bastardly son-of-a-bitch." Mr. Fox testified he asked appellant why he shot deceased, and he replied, "`I shot him because he said I was a son-of-a-bitch'; he didn't say anything else." The testimony of several other witnesses shows that appellant was very mad with Burns at the time. Appellant claimed that this language was insulting towards his mother, which raised the issue of manslaughter. This court, in a case very similar to this, Fitzpatrick v. State,37 Tex. Crim. 33-34, expressly held that where the deceased in that instance said to the appellant, "You G_d d__n mother f_____g son-of-a-bitch," did not raise manslaughter. That "this was merely an insult to the defendant himself and not in the nature of a *Page 153 slander or an insult towards a female relation." Also in Trevino v. State, 72 Tex.Crim. Rep., this court expressly held that where the deceased said to the appellant that he "was the son of a whore and disgraced" was no insult towards his mother and did not raise manslaughter. This court has also repeatedly in a large number of cases held that to call another "a son-of-a-bitch," or "a G_d d__n son-of-a-bitch," is no insult to the appellant's mother, and does not raise manslaughter.
The judgment is affirmed.
Affirmed.
ON REHEARING. November 24, 1915.