Appellant was convicted of murder in the second degree, and his punishment assessed at fourteen years confinement in the penitentiary; hence this appeal.
The court gave a charge on manslaughter, to which the appellant *Page 267 objected on the ground that it did not state the facts or acts of deceased upon which said charge was predicated, and refers us to Warthan v. State, 41 Texas Criminal Reports, 385. That was a case where the adequate cause was a blow struck appellant by deceased causing him pain or bloodshed, — one of the adequate causes laid down by the statute. It was held in that case that the court should have directly instructed the jury if they believed that a blow was inflicted by deceased on appellant, and it caused pain or bloodshed, that same was adequate cause, and if they further believed it engendered passion which rendered defendant incapable of cool reflection, they should find him guilty only of manslaughter. In this case we are not advised of any specific act, much less a statutory act, which authorized a charge on manslaughter. It is true the firing of a gun by one person at another might, under circumstances, require a charge both on justifiable homicide and manslaughter, but we do not believe the record here presents such a case. Still the court gave a charge on manslaughter, general in its terms, and which authorized the jury to find appellant guilty only of that offense if they believed that at the time there was any act or provocation which, in the light of all the circumstances that may have gone before, rendered defendant's mind incapable of cool reflection, and under such conditions he slew deceased. This, we think, was all that he could demand.
Appellant makes several assignments with reference to the charge of the court. We have examined the same, but, in our opinion, there was no error in the charge. It is a clear and lucid explanation of all the salient features of the case.
Appellant further urgently insists that the facts proven do not sustain the conviction, and that the judgment should be reversed on this account. We have examined the record carefully, and in our opinion his contention is correct. Aside from threats proven against appellant prior to the homicide, and expressions made after the killing of a heartless character, there is no inculpatory evidence against appellant showing that he committed a felonious homicide, but all the evidence indicates that he acted in self-defense. He and his brother both testify (and they are the only eyewitnesses to the homicide) to a clear case which authorized him to slay deceased; and these facts, thus sworn to, are not gainsaid by anything in the record, but the extraneous circumstances proven by other witnesses all tend to corroborate them; so that, notwithstanding the respect we have for verdicts of juries, still in this case we do not believe that the facts showing how the homicide was committed authorized them to find defendant guilty of any offense. The judgment is accordingly reversed, and the cause remanded
Reversed and remanded. *Page 268