The appellant was convicted in the District Court of Grayson County of the offense of manslaughter and his punishment fixed at two years confinement in the penitentiary. The facts sufficiently appears in the opinion.
The first complaint is of the fact that the trial court gave to the jury a charge defining "malice aforethought" after the argument was concluded. The bill of exceptions taken to this action of the court in giving said charge contains the following statement, as a part of the main bill prepared and presented by appellant to the court below, to-wit; "The reading to the jury of this charge after the argument was concluded was agreed to by defendant's counsel." Under the authority of Nowlin v. State,76 Tex. Crim. 480, 175 S.W. Rep., 1070, the trial court could so correct his charge after the argument was concluded. The appellant, we think, is bound by the agreement of his counsel as to a matter of procedure. He can waive any right except that of trial by jury for a felony and could agree to the correction of the charge after the argument was made. Article 22, C.C.P.
Appellant's next contention is that the evidence did not raise the issue of manslaughter and the court erred in submitting the same, and further, that his charge on said issue was not correctly framed. As we may be clearly understood, it will be necessary to state certain parts of the testimony.
Appellant shot and killed Mrs. Joe Webster in Denison, Texas, about midnight on the third day of December, 1917, the shooting taking place in the yard of appellant and at a point in the rear of *Page 507 his house between the back door of his house and the back gate of his yard, the shooting having been done with an automatic pistol. Mrs. Webster was a friend of appellant's wife and a frequent vistor to her home, a fact which was objectionable to appellant for some reason. On the night in question appellant came to his home about 11:30 and hearing the sound of music and dancing looked through the window and saw Mrs. Webster and a man he did not know, and whose identity was not fixed by any witness in the case. It seems that Mrs. Jacobs was playing the piano and Mrs. Webster and the stranger were dancing. Appellant did not come into his house but went to the Webster home about a block away and told Mr. Webster that his wife was at appellant's home, it was growing late and he wished Webster would come and get her. The two men returned to the Jacobs' home, going a round-about way because of appellant's suggestion that there was a street light near the front of his house and he did not want his wife to see them approaching. Appellant said nothing to Webster of the presence of the strange man in his home. When the two came back to appellant's house the witness Webster says he left appellant at the front door and he went and knocked on said door. It seems that appellant went at once to the rear door and was near there when the shooting took place. When Webster knocked no one answered, but in a short time he knocked again and Mrs. Jacobs came to the door and he asked if his wife was there and was informed by Mrs. Jacobs that his wife was not there. He insisted that she was, that he had heard her laugh and Mrs. Jacobs stepped to one side and the witness Webster went into the house. Shortly after coming inside a strange man passed him going out the front door. Webster walked on toward the rear of the house and in just a little while heard a shot. He ran out the front door and around the house to where his wife was lying on the ground, wounded. When he approached her she said, "My God, Jake has shot me." Appellant was standing near with a pistol in his hand but said nothing. Mrs. Jacobs testified that when Mr. Webster went back into the house that Mrs. Webster circled around the rooms and came running around to the front door and she let her out and that soon after she heard a shot and became much frightened herself and that she too ran away from the premises. Mr. Webster testified that appellant said nothing from the time he got to where the shooting took place until they were carrying his wife into the house at which time appellant said he was sorry and seemed concerned. The witness states that appellant was excited and seemed dumbfounded and amazed. After they got Mrs. Webster in the house a doctor was telephoned for and when he came appellant told him, according to the testimony of said physician, that Mrs. Webster was coming out of a closet fumbling with her clothes and he thought she was going to shoot him, and he fired. The physician said that appellant *Page 508 was intensely excited. Mrs. Fuson testified that she lived next dood and was in bed and heard a shot, went to her window, saw a woman lying on the ground in the Jacobs' back yard and a man standing over her; heard the woman say: "Won't you have pity;" and heard the man say: "Who was the man who was in the house," and the woman said she did not know. For himself appellant testified that when he and Webster came back to his home he went to the rear door and Webster to the front; that he heard some one running in the house and a moment afterward some one came running around the house toward him; that he thought it was the man he saw in the house and that he pulled his pistol and fired; after he fired there was a scream and he saw he had shot a woman; that he stepped up to the person and asked her if she was hurt, and also asked her who was the man in the house. On cross-examination he said that if the man had come running around the house he would have killed him, but claimed that the shooting was accidental. Mrs. Pearson testified that after the shooting that she asked appellant how he came to do it and he said nothing. This witness said she asked the appellant to get some towels and he replied that he had not been to his home for a month and did not know where the things were.
It seems to us that this testimony made it imperative that the court charge on manslaughter. The presence of the strange man at midnight in the house in which was appellant's wife, the intense excitement of the appellant, the statements surrounding the shooting showing that appellant thought that he had shot the man who was in the house, all called for such a charge. There was no claim on the part of the appellant that he thought he was in danger of an attack or that the fleeing person was close to him or made any hostile demonstration before he shot. Aside from the testimony of the appellant, which was contradicted by his statements to the other witnesses, there was no evidence in the case raising any theory except that the killing was either murder or manslaughter. The court charged on murder, and manslaughter, and instructed the jury to acquit the appellant if he fired accidentally. We see no just ground or criticism of the court's charge on manslaughter. The same was favorable to the appellant in that part in which the jury were told that unless they believed the killing was upon malice aforethought they could not convict him either of murder or of manslaughter. The error, however, being in favor of the appellant is of no avail to him here.
Nor is there any just ground of complaint of the court's charge to the effect that if the jury should believe that the appellant unlawfully and intentionally fired with the specific purpose of killing the person approaching, believing such person the man whom he had seen in his house before, he would be guilty of *Page 509 the same offense, if any, of which he would have been guilty if he had in fact killed said man. Appellant was only convicted of manslaughter and it has been the uniform holding of this court that if the defendant would have been guilty of manslaughter had he killed the person intended, the intentional killing of another person in the attempt to carry out such intent, would be manslaughter. See Sections 1901, Branch's An. P.C. and authorities cited.
Appellant asked a charge to the effect that if he shot to stop or scare away from the premises a man whom he had theretofore seen his house, that he would not be guilty. There was no evidence upon which such hypothetical charge could be predicated and the court did not err in refusing same.
We have carefully examined the record, the various bills of exceptions and the able brief of appellant's counsel, but finding no reversible error the judgment of the trial court is affirmed.
Affirmed.
ON REHEARING, June 25, 1919.