Appellant was indicted, charged with murder, and when tried was convicted of manslaughter, and his punishment assessed at four years confinement in the State penitentiary.
The facts show that appellant cut and killed Charles Colson on the night of the 6th of July of last year. The evidence would further show without conflict that appellant came from his home that night to a moving picture show, and after visiting the show was on his way home when he met Colson. They engaged in a conversation, and while walking along Colson asked appellant if he would take a drink with him, and upon appellant stating he would, Colson pulled a bottle of whisky *Page 219 out of his pocket and appellant took a drink out of the bottle. The evidence would further justify a finding that in a few minutes after taking the drink of whisky appellant's throat and tongue began to have a numb or dead feeling, when he asked Colson what was the matter with the whisky, and Colson replied it had morphine or coke in it. Appellant says he asked him, "Do you mean cocaine?" and Colson replied, "Yes," and when asked what he meant by giving one whisky with cocaine in it, Colson replied, "I thought you were a cocaine fiend, too." Appellant says he told Colson he was mistaken, and Colson replied, "It won't hurt you," and shortly thereafter asked if he would have another drink, appellant declining. To this much of the testimony there is but little, if any, conflict, but from this point there is quite a variance.
The State's witness W.L. Moulder testifies he is a driver for the Dallas Transfer Company, and he saw a part of the difficulty near the transfer barns. He states he saw the parties standing near one of the barns, and appellant said something about there being morphine in the whisky, and Colson replied it did not make any difference; that appellant then struck deceased, and deceased began backing, threw up his hands and told appellant to let him alone. That appellant kept backing Colson until Colson backed into barn No. 2; that he saw Colson turn as if to run, and appellant struck him in the back; that he saw appellant strike deceased several blows. That Colson never struck appellant at all, but held up his hands and told him to let him alone. Witness says he went in the barn and saw Colson; that he was not then dead, but died in about two or three minutes; that he saw no knife in deceased's possession nor none lying around there.
Frank McDonald says he was sitting on the curb near transfer barn No. 2 when he first saw the two men; that they were then about one hundred and fifty feet from him, and were talking and quarreling, but he could not understand what they said; that deceased started toward witness, and to use his own language witness testified: "and the other man, Maddox, apparently grabbed him by the coat, and pulled him back; Colson started again toward me, and Maddox was hitting him with his fist, that is, he was striking at him, anyway, and when they got down to where I was — you see I was on the curb and Colson was coming on toward me and Maddox was striking him. I stepped out of the way, then when they came to the curb, they started back into the street again. No, up to that time I had not heard anything that passed between them that I could understand. Well, they passed into the street again, towards the center, and went down towards the barn door, and went into the barn. Colson was backing backwards some of the time, and some of the time facing him. All I could see Colson doing was holding up his hands and warding off these blows, as near as I could see. They went into the barn No. 2. I stayed out there on the sidewalk. Maddox came out of the barn. I don't suppose it was over two minutes after he went into the barn. I heard him say, *Page 220 `Why don't you quit fooling with me?' He then went into a saloon there, which was about fifty or sixty feet from barn No. 2. I then went in the barn and when I found that he was hurt, I came out of the barn. When I went into the barn where Colson was, he was alive. I do not know how long he lived. He was lying on his back and bleeding on his left side; I could see the blood coming through his shirt. I then went up to the saloon where Maddox was. I heard him talking over the phone. He says, `I have cut hell out of a fellow, I am in jail, come down and get me out. I have cut hell out of a son-of-a-bitch, I am in jail, come down and get me out.' He then went down about fifty feet on the other side of the saloon, where there is a lot where Hurst keeps horses and cows. He went down towards McKinney Avenue. No, I did not see Colson strike Maddox."
Thus it is seen that the State's case is that appellant becoming angry at deceased giving him whisky with cocaine in it, while deceased was trying to get away from him, pursued him, cutting him until deceased fell. That deceased at no time struck or attempted to strike appellant.
Appellant's testimony presents two lines of defense: temporary insanity, produced by drinking the whisky with cocaine in it, and self-defense. He testified: That as he was on his way home from the moving picture show he met deceased, who said: "`Hello, friend, where are you going?' and I told him, `I am going home.' He said he was going that way and walked along with me about fifteen feet, and he says, `Will you take a drink with me?' and I says, `I would not mind having one.' I thought he was going to take me to the saloon and have a drink, but he pulled a bottle of whisky from his pocket and handed it to me, and I taken one. I took about two swallows of whisky out of the bottle of whisky Which he gave me, and then I handed the bottle back to him and we went straight on down Griffin Street. When we had gone about fifteen or twenty feet after taking the drink out of the bottle, my tongue and my throat became numb and dead, and I asked him what in the world was the matter with that whisky, and he said, `It had coke in it,' and I said, `Do you mean cocaine?' and he said, `Yes.' I asked him what he meant by giving me whisky that had cocaine in it, and he said, `I thought you was one, too,' and I said, `You are mistaken, I am not,' and he said, `It won't hurt you.' We then went on down Griffin Street where it crosses the T. P. Railroad, and he said, `Have another one,' and held the bottle out to me, and I refused to take another one. I thought it was a mighty dirty thing, giving me whisky with cocaine in it. When he told me it had cocaine in it, it scared me, because I did not know what cocaine might do for me. We crossed the T. P. tracks and went on past Patterson Avenue toward Camp Street. After we got to Camp Street my head commenced to swim. When we got to Camp Street we turned off of Griffin Street down Camp Street. The man was walking along with me, and he turned on off to Camp Street with me. My head felt queer and my tongue had a funny feeling. We went on out Camp Street towards *Page 221 Akard Street. We reached the first livery stable on Camp Street before I had any trouble with this man. We were talking about him giving me whisky with cocaine in it. I asked him what he wanted to give me whisky with cocaine in it for, and he said, `I thought you was one, too,' and I told him it was a damn dirty trick, and he slapped me. At the time he slapped me, my head was already swimming, and my tongue and throat had a dead feeling, I felt peculiar. When he slapped me, I hit at him. He then got out his knife, and I got out mine, and after that he was cutting at me with his knife, and I was cutting at him; that is as far as I remember. No, I do not remember cutting him." He further testified he did not remember anything after that until the next morning, when he awoke in jail; that his head was then swimming, he had an awful headache, and his tongue and mouth did not feel right — that his mouth and throat felt dry, and his throat was burning.
Appellant's father testified that he got word that night his son was in jail, and went to see, and the first thing appellant said was, "Pa, have you came after me?" that he spoke to appellant and said, "Frank, do you know you have killed a man," and appellant replied, "I never killed anybody — a man tried to kill me, he gave me some dope." That he was in the jail talking to appellant about five or ten minutes; that appellant's face was red and his eyes looked glassy, and from the way appellant talked and acted in his opinion he was of unsound mind.
Joe Austin, the city detective who arrested appellant, says he was greatly excited when arrested, and talked freely and loquaciously and his talk was disconnected. That the knife he took off of him had blood on it. The knife was identified and introduced in evidence.
Dr. C.M. Rosser testified and qualified as an expert on insanity. He explained the effect of cocaine on the human system. From the hypothetical question propounded by appellant, based on the evidence offered in his behalf, he testified that in his opinion appellant would be temporarily insane. From the hypothetical question propounded by the State, based on its evidence and theory of the case, the doctor testified that the appellant would not be insane, but his conduct and acts would look like resentment. So the jury would be left to find whether the hypothetical question propounded by the defendant or the State was founded upon the true state of facts as made by the testimony. Deceased was cut a number of times, both in the back and in the chest, one cut penetrating the heart.
In his brief and argument before this court the appellant seemed to place more stress on bill of exceptions No. 2 than he did on the others. In this he shows while Arch Allen and two others were on the witness stand he propounded to them a question in answer to which each would have testified: "He was acquainted with deceased, Charles Colson, and knew that said Charles Colson used cocaine, and at the time of the homicide and long prior thereto, that he was habitually addicted to the use of cocaine." Appellant states in the bill "that the testimony of each of said witnesses was important, material and relevant to the *Page 222 defense herein, as there is no direct proof as to the amount or quantity of cocaine contained in said whisky, and the defendant desired to show by each of said witnesses that the deceased, Charles Colson, was then and had long been addicted to the excessive use of cocaine, and was habitually addicted to the use thereof, for the reason that said proof would have aided the jury in forming some correct conclusion as to the amount and quantity of cocaine contained in the whisky given to the defendant by the deceased, and would have thrown some light on the issue as to whether a sufficient quantity of cocaine was administered to the defendant to produce the physical and mental condition on the part of the defendant as testified to by the defendant." It is thus seen appellant's reason assigned to the court at the time as to why he erred in not admitting said testimony was that he desired to introduce the evidence that the jury might infer or presume therefrom the amount or quantity of cocaine contained in the whisky, and also that the jury might, from that presumption, further infer or presume whether or not such a quantity of cocaine might produce the mental or physical condition as testified to by defendant. Appellant cites a number of authorities to the effect that "all facts which go to sustain or impeach a hypothesis logically pertinent are admissible in evidence." This is the law beyond question, and therefore it is unnecessary to discuss the authorities cited by appellant in support of the proposition, but such a rule of law has no application to the testimony offered and excluded by the court as shown by this bill. He wanted to show the fact that deceased was an habitual user of cocaine; for what purpose? That the jury might first presume as to the quantity of cocaine probably in the whisky, and from this presumption the jury then presume that such a quantity would probably produce temporary insanity. The text-books on evidence all adhere to the rule laid down by Mr. Chamberlain: "The requirement that the logical inference styled a presumption of fact should be strong, natural and immediate one brings as a corollary the rule that no inference can be based upon a fact the existence of which itself rests upon a prior inference. In other words, there can be no presumption upon a presumption." (Sec. 1029.) This court in the case of House v. State, 15 Texas Crim. App., 522, in an opinion by Judge Hurt, ably and fully discusses this question, and holds one presumption, can not be based upon another presumption, quoting approvingly the text of Burill on Evidence: "Upon this subject the learned author, Mr. Burill, says: `Rule 3. The evidentiary facts must be all proved, and the existence of none of them can be presumed. This is a fundamental rule, applying without variation to all elementary facts of which the basis of evidence is composed. So far as they are concerned presumption can not be made the ground of presumption. This would be extending the principle of induction or inference far beyond the legitimate limits, and lead to endless multiplication of the sources and chances of error.'"
This rule has always prevailed in this court, such presumption *Page 223 sometimes being referred to as too remote. Also our Supreme Court and Courts of Civil Appeals follow the same rule of evidence. In the case of M.P. Ry. Co. v. Porter, 73 Tex. 304, on p. 307, that court says: "The only possible way to construct a theory of the case which would entitle plaintiffs to recover is to deduce one presumption from another, and this the law will not permit," citing Lawson Pres. Ev., rule 118, p. 569. See also St. L.S.W. Ry. Co. v. McIntosh, 124 S.W. Rep., 692; M., K. T. Ry. Co. v. Byrd, 124 S.W. Rep., 738; Moore v. Hanscom, 103 S.W. Rep., 665; Baldwin v. Goldfrank, 88 Tex. 258. In this latter case Chief Justice Gaines wisely states the rule to be: "It seems to us that this would be to build one presumption upon another, which is never allowed. The rule is elementary that a presumption can be legally indulged only when the facts from which the presumption are proved by direct evidence; and that one presumption is not to be adduced from another." For a list of authorities from almost every State in the Union see 16 Cyc., 1051; 22 Am. Eng. Ency. of Law, 1236; Ency. of Ev., vol. 9, p. 880.
The only other question presented in appellant's brief is, that the court erred in his charge on self-defense. Under this assignment he presents no authorities. At the time the court submitted his charge to appellant's counsel for inspection, the only exception reserved reads as follows: "The defendant excepts to that portion of the charge of the court on the question of abandoning the difficulty, contained in his main charge on page 9 thereof, because it does not make clear to the jury that if the fatal wound had been inflicted while the defendant was acting in his own self-defense, and before the deceased had so abandoned the difficulty, the further inflicting of wounds and injuries after the necessity therefor had ceased and after deceased had abandoned the difficulty would not impair the defendant's right of self-defense." The exception reserved, it will be noticed, is that the court erred in not instructing the jury that if the fatal wound was inflicted while the defendant was acting in self-defense, the further inflicting of wounds after the necessity thereof had ceased and after deceased had abandoned the difficulty would not impair the defendant's right of self-defense. Had the court so instructed the jury it would not have been the law, for it is not the law of this State, that if one inflict a fatal wound, and his adversary flees, and he still pursues him, the right of self-defense would remain unimpaired. The law is, he has no right to pursue and inflict other wounds, and if he does do so, and death is hastened, or contributed to in any sense by the additional wounds, the defendant would be guilty of some grade of offense. In the cases of Williams v. State, 2 Texas Crim. App., 271, and Hart v. State, 15 Texas Crim. App., 202, the rule is clearly laid down: That if the person would have died from some other cause already operating, yet if the wound hastened the termination of life, this is enough. (Bordeaux v. State, 58 Tex.Crim. Rep.; St. Clair v. State,49 Tex. Crim. 479; Riley v. State, 81 S.W. Rep., 711.) No one can *Page 224 pursue another when he knows his adversary has abandoned the difficulty and retreated with no intention of renewing the difficulty, and inflict other wounds on him. His right to act in self-defense ceases when he knows all danger to him is over, and he is criminally liable for all acts he commits subsequent to that time. If the additional wounds did not hasten nor contribute to the death of his adversary, he might be guilty of no higher grade of offense than aggravated assault, but certainly he would not be entitled to an acquittal on the ground of self-defense, when he knew that all danger to him was passed, when he inflicted the wounds after his adversary had abandoned the difficulty and retreated with no intention of renewing the difficulty. The exception to the charge was not well taken, and the court did not err in overruling it. Had the appellant excepted to the charge on the ground that same did not instruct the jury of what grade of offense appellant would be guilty under such circumstances, there might have been some merit in his contention, but he made no such exception or objection to the charge either in the objections to the charge or in the motion for a new trial, and under article 743 as amended we can not make such objection for him and act thereon. In addition to this, as appellant was adjudged guilty of manslaughter only, such objection, if it had been made, would not present serious error. It might do so had he been found guilty of murder.
Appellant does not brief his other bills or failure to give the special charges requested. However, we have read the other bills, and they present no error. The court's charge on insanity is a fair presentation of that issue, and not objected to by appellant, therefore it was not necessary to give the special charge requested. One of the special charges was given by the court, and the others virtually embraced in the court's charge.
The fact that deceased was drunk on the morning before the homicide would be material to no issue in the case, and the court did not err in sustaining objections to that testimony. Nor would the testimony of L.E. Payne to the effect that a few weeks before the homicide he saw deceased put a drug in a bottle of whisky be material. The evidence for the State and appellant proved that deceased gave appellant a drink of whisky with a drug in it on the night of the homicide. That was not a contested issue.
The judgment is affirmed.
Affirmed.