The appeal is from a conviction of murder, and punishment fixed at confinement in the penitentiary for a period of ten years.
The appellant shot and killed Charles Clendennin on the 25th day of August, 1917. Some time prior to the homicide, the residence of appellant's mother had been burglarized and some property taken therefrom belonging to Hallie Moore, appellant's sister. Audie Moore, appellant's nephew, was charged and indicted for the offense of burglary, and the deceased signed his bail bond. Audie Moore seems to have subsequently made some statements to the grand jury reflecting upon the character of Hallie Moore for virtue and chastity. The grand jury caused Hallie Moore to come before them, as we gather from the record, to determine whether in making the statements mentioned Audie Moore had been guilty of perjury. Appellant and his brother accompanied their sister Hallie to the county seat, and in conversation with the district attorney and members of the grand jury protested against the interrogation of their sister upon the subject; and in the course of their conversations with the persons named and the sheriff, appellant connected the name of the deceased with the transaction. After returning to their home, they made inquiries of their sister touching the matter, and she denied any misconduct on her part, and said that while she was an inmate of the home of the deceased, about a month before the tragedy, he had made indecent proposals to her. Two or three days subsequent to this conversation the tragedy occurred. At the time it took place the deceased was sitting upon the counter in a store in the village. The appellant accused him, and after a few words were exchanged the deceased was shot and fatally wounded.
The evidence is somewhat in conflict concerning the conversation that took place, though it does appear without dispute that immediately before the shooting the appellant asked the deceased if he had not been *Page 627 making some talk, or taking some part in that matter that Audie Moore was getting up about Hallie Moore, stating that if he had done so he was a God damned liar. The State witnesses testified that deceased replied that he had not, or at least they so understood him; and appellant then said: "Well, if you have made any talk publicly or privately about Hallie, you are a God damned son-of-a-bitch," and immediately fired.
The appellant introduced in evidence a part of the dying declaration of the deceased, as follows:
"In the first place he has been on friendly terms with me. He walked in to Bud Bynum's Gro. Store. I was reading a sketch in Ft.Worth Star-Telegram about Gov. Ferguson and we was talking about Ferguson having a hard deal. He walked in at that time. He asked what we were discussing. A whole crowd talked for several minutes. He suddenly stopped talking and laughing and he looked and gazed at me. He asked if I knew about Audy making talk about Hally Moore. I told him I had a little sketch of it. He says we been told that you were instrumental in talk going on. He wanted to know if I hadn't said something about Hally. I told him I hadn't made any public statement to anybody regarding her. He said if you have made any remark about her either publicly or privately you are a G.D.L.M.F.S. of Bitch. I started off of counter and he begun shooting. He shot twice and hit me; and I said, he has killed me, and jumped over behind counter. I went out door and he went towards home. I intimated to someone that gen. opinion was that girl wasn't acting just right."
The State introduced from the dying declaration the statement: "I never had any weapon of any kind." Exception was reserved to this upon several grounds, which we think are not tenable. The case was tried upon the theory that the issue of self-defense upon apparent danger was involved. The State's theory was that the deceased made no demonstration, and that there was no act from which the appellant could reasonably draw the inference that he was in danger of attack. Under these circumstances, it was competent for the State to show that the deceased was not armed, in support of its theory that he made no demonstration. Williams v. State, 30 Texas Crim. App., 444; Dougherty v. State,59 Tex. Crim. 469; Branch's Annotated Penal Code, sec. 1931.
There is complaint made of the refusal of the court to permit the appellant to prove by his wife that on reaching his home he stated that he had shot Charley Clendenning; that "Charley had been talking about Hallie." The court, in qualifying the bill, states that this "was not shown to be res gestae, neither the time elapsing after the shooting, nor the whereabouts of the defendant having been fully shown." It appears from the bill that the appellant lived at a point variously estimated at 150 to 300 yards from the scene of the homicide, and that he was seen to start in the direction of his home, and that he reached his home. There is a failure to show whether he went directly to his *Page 628 home or not, and what intervened between the homicide and his reaching home. We are unable to conclude that the facts as recited in the bill overcame the presumption in favor of the correctness of the court's ruling.
We are unable to accept the view advanced by appellant that under the facts a conviction for a higher grade of offense than manslaughter cannot be sustained. There is much evidence from which the jury might have concluded that the cause of the killing was the information received by the appellant touching the language and conduct of the deceased towards the appellant's sister. There is evidence, however, before the appellant was informed that the deceased had made any improper proposals to Hallie Moore, that the appellant expressed ill-will towards the deceased, which, under the circumstances, may have been properly attributed by the jury to the fact that appellant was incensed because the deceased had become the surety of Audie Moore upon the bail bond. The homicide did not take place for several days after appellant had received the information given him by his sister, and his conduct during the intervening time, even up to a short time before the homicide, as detailed by some of the witnesses, may have impressed the jury with the view that his mind was not rendered incapable of cool reflection by the information touching the insulting conduct. Moreover, there was a sharp issue of fact upon which the jury may have found against the appellant, as to whether the homicide took place at the first meeting after knowledge of the insulting conduct. It is true that in the dying declaration, the deceased said that after appellant referred to the conduct of Audie Moore toward Hallie Moore, he, the deceased, said that he had made no public statement to anybody regarding it. The dying statement was made when the deceased was in a very weak condition, and was under the influence of narcotics, according to some of the evidence. The eyewitness testified. Some of them said that the deceased's reply to appellant was that he had had no connection with the matter. Under the facts, we do not feel warranted in holding, as a matter of law, that the evidence would not support a conviction of murder.
The evidence raised the issue of murder, manslaughter, and self-defense, and these the court submitted to the jury. Exceptions to the charge were reserved. The chief alleged vice in the charge is that it was so framed as to convey to the jury the idea that the appellant was required to prove the facts relied on by him to reduce the grade of the homicide from murder to manslaughter. The particular phase of the charge against which this criticism is urged is quoted from the charge on manslaughter as follows:
"And if you further believe from the evidence, beyond a reasonable doubt, that at the time the defendant shot the deceased he was laboring under such a degree of anger, rage, resentment, or terror, as to render his mind incapable of cool reflection, produced by the defendant having been informed that deceased had previously made improper and indecent *Page 629 proposals to his sister, and that such killing took place upon the first meeting of deceased by the defendant, after he had learned of such insulting conduct or words towards his sister, or if you further believe from the evidence, beyond a reasonable doubt, that at the time of the homicide in question the deceased admitted in the presence of or to the defendant that he, the deceased, had made statements derogatory to the character of the defendant's sister and on account of such admissions, if any were made, the mind of the defendant was then incapable of cool reflection and in that condition of mind he shot the deceased voluntarily and without justification, then in either event you will find the defendant guilty of manslaughter."
When the issues of self-defense, manslaughter, and murder, are raised by the evidence, it is often difficult to so frame the charge to the jury that it will not trench upon the rule touching the burden of proof, and at the same time safeguard the rights of the accused. This difficulty grows out of the fact that the lower grades of homicide are included in an indictment for murder, and these lower grades, in a case involving the issues mentioned, occupy both an offensive and a defensive relation to the case. The jury is called upon to determine whether the homicide was lawful or unlawful. The burden is upon the State to prove beyond a reasonable doubt the facts which show it to be unlawful and the facts which bring it within the higher rather than the lower grade of offense included in the indictment. To bring an unlawful homicide within the grade of manslaughter as against that of murder the burden is not upon the accused to prove the mitigating circumstances, but he is entitled to have the offense mitigated to the grade of manslaughter if there is evidence which produces in the minds of the jury a reasonable doubt as to which of the grades, the higher or lower, he should be convicted.
The usual manner pursued is to embrace in the charge a qualifying instruction to the effect that if the jury believe beyond a reasonable doubt that the accused is guilty of some grade of culpable homicide, but have a reasonable doubt as to whether it is murder or some lower grade of offense, then the benefit of the doubt must be given to the accused, and no conviction can be had of the higher grade. Such qualifying instruction has generally been held, in the absence of request for more specific instruction, sufficient to relieve the charge of substantial objection when considered as a whole. Pitts v. State, 29 Texas Crim. App., 364, 16 S.W. Rep., 189; Spangler v. State, 42 Tex.Crim. Rep.; Oldham v. State, 63 Tex. Crim. 527, 142 S.W. Rep., 17; Best v. State, 58 Tex. Crim. 331; Hendricks v. State, 69 Tex.Crim. Rep.; LaCrone v. State, 84 Tex.Crim. Rep., 209 S.W. Rep., 405. The refusal of the court to respond to such a request would probably be erroneous. Huddleston v. State, 54 Tex.Crim. Rep.; Melton v. State, 47 Tex.Crim. Rep.; Terrell v. State,53 Tex. Crim. 605; Stuart v. State, 57 Tex.Crim. Rep.; Castro v. State, 66 Tex.Crim. Rep.; Mason *Page 630 v. State, 72 Tex.Crim. Rep.. He would not, however, be justified in departing from the approved practice in framing his charge, unless fortified with a request or an equivalent exception. Otherwise, in the event of the conviction of manslaughter, the accused would have a just complaint in his claim that but for the shifting of the burden of proof his theory of justifiable homicide might have been accepted by the jury.
The language used in the exception in the instant case we quote:
"Because said charge is not the law, is prejudicial to the rights of the defendant, is restrictive against the defendant, places undue and unwarranted burden upon the defendant, and omits to submit the material issues to the jury."
No special charge upon this subject was requested. In this state of the record, we believe the point presented does not justify or authorize us to reverse the case. A leading case upon the subject is Pitts v. State, 29 Texas Crim. App., 374, from which we take the following quotation:
"But it is insisted that the court not only committed a grave, but fundamental, error in the manner in which the law of manslaughter was submitted upon that issue as raised by the evidence. The portion of the charge complained of is as follows, viz.: `If the defendant had been informed that said Stern had used insulting language about his, defendant's wife, and when defendant heard of said language, the same created in the mind of defendant such passion as to render his mind incapable of cool reflection, and, acting under the impulse of said passion, if any, he with a gun shot and killed the said Stern the first time he met him after he had been informed that Stern had used insulting language about his, defendant's wife, then you are instructed he would be guilty of manslaughter. And if you believe from the evidence beyond a reasonable doubt that the defendant did kill said Stern in the manner and under the circumstances as before explained in this paragraph, then you will find the defendant guilty of manslaughter, and assess his punishment,' etc. To this paragraph of the charge the defendant, by his counsel, excepted before the jury retired, because it required the jury to believe beyond a reasonable doubt all the facts necessary to reduce the homicide to manslaughter before they could reduce the grade of his offense. In support of this position we are cited to Rockhold's Case, 16 Texas App., 577, in which this court held that it was not necessary that the jury should believe beyond a reasonable doubt any fact essential to the establishment of a defense or a lower grade of crime. `On the contrary,' it was said, `if they have reasonable doubt of the existence of the facts essential to establish the higher grade of offense, the defendant is entitled to the benefit of such doubt. The jury should never be required to apply the reasonable doubt to the existence or non-existence of a defense before they should give the defendant the benefit of such defense.' As thus announced, the rule of law is unquestionably correct. But in our opinion it is not *Page 631 applicable in this instance, taking the charge as a whole, and considering the paragraph quoted in connection with the contest. After having correctly applied the law of murder in both degrees to the facts, the court instructed the jury: `If, under the evidence and the instructions given in this charge, you have a reasonable doubt of defendant's guilt, as to murder of the second degree, then you will acquit him of that offense, and will next consider whether, under the evidence and the law as given in this charge, he is guilty of manslaughter, or whether he was justified in taking the life of Dave Stern, if you find he did kill said Stern.' Immediately succeeding this is the language in the paragraph quoted which is so bitterly complained of. We think the complaint is unwarranted and untenable. The court has evidently disposed of the higher grades, and is now instructing as between manslaughter and self-defense. As between these two issues the jury must find manslaughter beyond a reasonable doubt. He is not applying the reasonable doubt to manslaughter as a lesser degree, but to manslaughter as a higher crime as against self-defense or no crime at all; and in such case the jury are properly told they must find manslaughter beyond a reasonable doubt to warrant a conviction of that crime."
In the instant case, the issues involved and the instruction given (including the qualifying clause) are in substance the same as those in the case from which the above quotation is made. The principle announced, and the rules of law applied in the opinion written by Presiding Judge White deciding that case, are controlling in this one.
We think the charge did not convey to the jury the idea that the right of appellant, growing out of alleged insulting conduct towards or words relating to his sister, depended upon the existence of such conduct or words in fact. In addition to the above quotation from the charge, the following was embodied in it:
"Insulting words or conduct of the person killed towards a female relation of the party guilty of the homicide, is in law deemed adequate cause, providing the killing took place immediately upon the happening of the insulting conduct or the uttering of the insulting words, or so soon thereafter as the party killing may meet with the party killed after having been informed of such insults."
"And in this connection the jury are at liberty to determine from all the facts and circumstances in this case whether or not the defendant was informed of the insulting words or conduct, if any, on the part of the deceased towards the defendant's sister, and whether such information was the real cause which provoked the killing."
The court having in the charge embodied no qualification of the right of perfect self-defense, there is no merit in the complaint of the refusal to instruct the jury on the law applicable to the appellant's right to arm himself and seek the deceased for an explanation. Williford v. State, 38 Tex.Crim. Rep.; Smith v. State, 81 Tex.Crim. Rep., 195 S.W. Rep., 598. *Page 632
We have examined but deem it unnecessary to comment on the other questions presented for review, suffice it to say, none of them in our judgment are well taken.
The judgment is affirmed.
Affirmed.
ON REHEARING. March 9, 1921.