Appellant was indicted and tried for the murder of Luis Sepulveda and was convicted of manslaughter with the lowest punishment assessed.
He contends that on the trial the indictment was not read by the district attorney to the jury. The question was in no way raised until by motion for new trial after the verdict and judgment. The court heard the testimony on this ground of the motion. It was proved that the jury was regularly empaneled, sworn and took their seats in the jury box; that the witnesses were then sworn, ordered under the rule, but the district attorney called his first witness, who took the stand; that the district attorney, as the two attorneys for the appellant swore, in substance, then announced that he would arraign the defendant. That the defendant was then ordered to stand up, which he did, and the district attorney, about equi-distant from the jury, judge and the appellant, read the indictment in English, and the court asked him whether he was guilty or not guilty, and he answered something in Spanish. Upon the suggestion, then, that the appellant did not understand English the indictment was given to the court interpreter and he read it in Spanish and that the defendant then plead not guilty; that the indictment was not again read by the district attorney to the jury specially. One of the attorneys for the prosecution swore that at the time and under the circumstances stated, after the jury had been empaneled and sworn, the witnesses sworn and placed under the rule, and one witness who had been called, took the stand, that the district attorney said, "I will read the indictment before the jury, where they can hear it, and the defendant can be arraigned at the same time." And that the district attorney then read the indictment in English and that upon the suggestion that the appellant could not understand English, that he handed the indictment to the court interpreter and the court interpreter read and explained it to the defendant in Spanish and that the appellant pleaded not guilty. The court stenographer swore substantially to the same thing. The trial judge, after hearing the testimony, correctly overruled the motion for new trial on that ground. The testimony clearly authorized him to do so.
Appellant has another bill in which he complains that the court *Page 564 permitted the Spanish interpreter to testify, proving up the confession by appellant. He objected to the witness testifying at all on the ground that as the rule had been invoked and the interpreter had been in the courtroom and heard the testimony of the other witnesses he was incompetent to testify. The court's explanation of the bill stated that prior to the time said witness testified no other witness in the case had testified concerning the fact so testified to by said witness, or to facts relating to the same. Moreover, the confession was proven by other witnesses without any objection, and appellant himself testifying, swore that he had signed the confession and it was his signature thereto and it was read over to him before he signed it. The action of the court in permitting the interpreter to testify under the circumstances presents no error.
Appellant has two other bills, one complaining that the court permitted Jose Chapoy to testify that there was a custom among the Mexicans by which if a girl declined to dance with one boy that she should not dance with other boys during that night. The other is that the district attorney was permitted to ask appellant himself, when testifying, "You know that your sister had declined to dance with Frank Robles before that conversation, didn't you?" and "You know it is a rule among Mexicans, do you not, that if a lady declines to dance with one partner at a dance, that she does not dance with any other partner that night?" To which he answered that he did not know his sister had declined to dance with Frank Robles, and that he did not know whether or not any such custom prevailed among Mexicans. No other explanation of the surroundings or circumstances under which these questions were asked or answered is disclosed by either one of the bills. The court qualified each of them with the explanation that after it developed in defendant's testimony, testifying in his own behalf, that he did not know whether there was such a custom or not then all this character of evidence was withdrawn from the jury by a special charge which was given.
Considering the whole record of the testimony, these questions and answers had no special bearing upon any material question in the case. As the whole matter was withdrawn from the jury by the written charge of the court, neither of the bills present reversible error.
Appellant contends that the testimony did not raise the question of provoking the difficulty and that, therefore, the court erred in submitting that issue to the jury. The statement of facts has been carefully read and studied and we are of the opinion that the evidence does raise the issue and that the court did not err in submitting it to the jury. No complaint is made of the charge on the subject. But a brief statement of the testimony is necessary on this point.
There was a Mexican dance at the house of Lucas Chapoy. The deceased was Chapoy's step-father and had charge, and was master of ceremonies at the dance. Appellant's sister attended the dance and was one of the lady dancers. After the dance had been in progress for *Page 565 several hours, at about midnight, one of the men, Frank Robles, it seems, engaged her for a dance, but before that dance commenced he was called off or went off from her. Thereupon Andreas Pineda asked her to dance with him and she started to do so. Thereupon Robles interfered and objected to her dancing with Pineda. At Robles' request she declined to dance with Pineda and took her seat. About this time appellant, who had been outside, came in and asked his sister what was happening. She told him nothing, but he understood at the time what had transpired and he was discussing the matter with the parties when deceased came up and either put his hand on appellant's shoulder or struck him on the shoulder and objected to his interfering with the dancing. Thereupon appellant in substance said to him if he was a man to come out of the house, and he himself then went out and deceased followed him out. They got out to the end of the gallery and with some further talk between them deceased shoved him off the gallery. He then called deceased a "son of a harlot," a most insulting epithet. Whereupon deceased immediately undertook to assault him with his hands alone. The overwhelming proof showed that deceased had no knife and no other arms whatever. Appellant backed off to about two-thirds of an eighty-foot street when he began shooting at deceased and continued to do so until he shot him down and killed him. This testimony raised the issue of provoking the difficulty.
It is hard to conceive of a greater insult to a man than have another tell him that he is a "son of a harlot." One giving such an insult is bound to know that the party thus insulted will resent it and at once strike him or attempt to strike him, and as said by Judge Hurt in Polk v. State, 30 Texas Crim. App., 657, "Though he may not have intended to produce the occasion or provoke the difficulty, yet this would be the reasonable and natural consequence of his act, for which, by the law, he is held responsible, and responsible to the same extent as if he had intended to provoke the difficulty." See also 2 Branch's Ann. P.C., section 1953, where he lays down the correct doctrine applicable herein and collates a large number of cases in point.
The judgment is affirmed.
Affirmed.