Appellant has filed a motion for rehearing in which this court is accused of wrongly quoting testimony, of making unjust deductions therefrom, and of making statements which are inaccurate and unfair to the appellant.
Condoning zeal for a client, which might find expression in more persuasive terms, and confessing to a sincere and strong desire to do right and be fair, this court has carefully gone over the former opinion and the matters complained of in the motion for rehearing.
It is insisted that we erred in holding the facts sufficient to sustain the verdict and judgment of manslaughter. It is uncontroverted in this record that appellant shot and killed Mrs. Webster in the back yard of his own house near midnight on the date in question; that he came to his house shortly before the shooting and saw her, his wife and a strange man in a room together, his wife playing the piano and Mrs. Webster and the strange man dancing; that after going to Webster's home and bringing Mr. Webster back to appellant's home, that Webster went to the front door and appellant to the back door of his house; that at the time the appellant was armed with an automatic pistol; that shortly after taking his station at the back door appellant heard some one running inside the house. He says: "I thught I would give them a little room to get out but they did not come out of the back door. I stepped down off the back porch into the yard possibly *Page 510 ten or twelve feet and was walking in the path toward my barn when on a sudden some one came towards me from around the house. . . . I thought it was the man in the house possibly. I turned around suddenly and called to him to stop and I pulled my pistol from my pocket and fired. Q. What was your purpose in pulling your pistol out? A. I did not know who it was coming up from behind me and I got excited. I did not intend to kill anybody. I heard a scream when the pistol fired, and I recognized it to be a woman instead of a man. I then went back to where they fell on the ground and asked them if I had hurt them. It was Mrs. Webster. I also asked who the man was in the house, and she wouldn't answer me." Later in his direct examination appellant said: "Just before and at the time I fired that shot I was excited. I did not intend to shoot Mrs. Webster. At the time the pistol was shot I did not know who it was there. I did not intend to fire the pistol, I presume it was accidentally fired." On cross-examination, explaining his purpose in going after Webster, after discovering the presense of Mrs. Webster and a strange man in his home, appellant said: "I was the proper man to get the man out, if he was there with my wife, and I was going to take careof him, but I first wanted Joe to come after his wife." Later in his cross-examination he said: "I remember the gun going off accidentally, and I remember her screams. There are different conditions in my mind — I was very much excited." Later he was asked this question: "If it had been a man instead of a woman out there which direction would you have gone?" To which question he answered: "I would have killed him." Then the following colloquy occurred between the attorney and witness: "Q. You would? A. I think so. I did not know it was not a man. I thought it was a man coming round the house. I presume that I would have killed the man."
Webster says when he got to where appellant and his wife were after the shooting "we were both excited, and he was in the condition I described awhile ago, dumb or amazed." Dr. Burch says of appellant when he got there after the shooting: "He was intensely excited."
We have given this much of the evidence to show beyond any sort of question the existence of a state of facts which not only made it imperative that the court should submit the theory of manslaughter, but which shows that the jury was acting upon abundant evidence in finding the appellant guilty of manslaughter. The court submitted murder, manslaughter, and accidental homicide, in addition to giving several special charges asked presenting affirmatively the theory of the defense. We think that the court's charge fully and fairly submitted every issue made by the evidence in the case. The essential element of manslaughter, the passion arising from an adequate cause, was present. The belief that a strange man was in his home, and that *Page 511 it was that man who was coming round the house, appellant's surprise, dumbness, amazement, excitement when he found it was not that man, his avowed statement of his purpose to look after that man whom he had just seen in his house, his own testimony and that of others as to his excitement, make the question of manslaughter indisputable both in theory and in support of the verdict of the jury.
Complaint is again made that the court's charge on manslaughter was too restrictive and allowed the jury to consider only such provocation as arose at the time. Only part of the court's charge was excepted to, and appears in the bill of exceptions and as quoted in appellant's brief. This court will look to the entire charge as given by the court in determining the sufficiency of any particular portion thereof. In addition to that part of the charge on manslaughter to which said objection was made, the court further charged as follows:
"Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty in determining the adequacy of the provocation (if any) to consider in connection therewith, all the facts and circumstances in evidence in the case, and if you find that, by reason thereof, the defendant's mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind, in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law, and so in this case you will consider all the facts and circumstances in evidence in determining the condition of the defendant's mind at the time of the alleged killing, and the adequacy of the cause (if any) producing such condition."
There was no question from the record that appellant believed the party who he says was approaching him at the time of the homicide was the man he had just seen in his house. The trial court did not err in telling the jury if appellant unlawfully and intentionally fired at the person approaching him with the specific intention of killing the man whom he had just prior thereto seen in his house, that he would be guilty of the same offense as if he had in fact shot said man. See Branch's Ann. P.C., Sec. 1901, and authorities cited.
Appellant complains that the trial court did not give his special charge, that if he shot to stop or scare the stranger he had just seen in his house, the jury should acquit. Appellant did not claim on the trial that he shot to scare anyone. He did testify he told the approaching party to stop, and at his own request the court charged the jury as follows:
"Gentlemen of the Jury: You are instructed in this case that the defendant must be tried from his standpoint and is to be judged as the facts and circumstances reasonably appeared to him: and if you believe and find from the evidence that on the night of December 3, 1917 and at the time Mrs. Webster was shot and killed, viewed from the defendant's standpoint and as he saw it, the strange man, *Page 512 Mrs. Webster and his wife were guilty of improper relations with each other, the defendant would have the right while on his premises to stop the strange man running across his yard and make inquiry as to his presence there, and if at the time of the shooting, viewed from defendant's standpoint, it reasonably appeared to him that the deceased was the strange man that he had recently seen in his house, and upon seeing him he called to him to stop and drew his pistol, and in doing so was exercising ordinary care, and that the same was unintentionally and accidentally discharged and Mrs. Webster was shot, and if you should find that the defendant had no intention to shoot and kill said stranger and that he did not know that she was present, but thought she was the strange man, then you will acquit the defendant.
"Or if you have a reasonable doubt as to this fact, you will acquit him and return a verdict of not guilty.
E.J. Smith, Attorney for defendant.
Presented to the Court before the main charge was read to the jury and given.
F.E. Wilcox, Judge 59th Judicial District of Texas."
This we believe fully and fairly, and with reasonable justness and accuracy, disposes of the contentions made by the appellant in his motion for rehearing.
Regretting our inability to agree with him regarding the same, said motion for rehearing will be overruled.
Overruled.