If we comprehend appellant's original and supplemental motions for rehearing, he insists that the record showed facts amounting to insulting conduct by deceased toward the daughter of appellant; and that the trial court should have told the jury specifically that insulting conduct toward a female relative would be adequate cause to create passion which, if it brought about the killing, would reduce same to manslaughter. Also that we erred in holding that if there was insulting conduct toward said daughter it occurred in the presence of appellant, and not being then resented by him, this in law was the first meeting and he could not thereafter successfully base manslaughter passion on what then occurred.
We have sifted the record in the light of these contentions. Appellant asserts that his first knowledge of what he now claims to have been the wrong conduct of deceased with his former wife, was what Bill Malanson told him in December, 1922, before this killing in May, 1923. He testified: "I positively did not hear anything about these matters, or believe anything about them until Malanson told me." He also said, "I talked to that man * * * and I killed Poteet on the 7th of May."
What did Malanson tell appellant in December, 1922? We quote from his testimony: *Page 199
"He told me that when I came out of Louisiana one night that Mrs. Peart was getting in a car with Mr. Poteet, and that Mrs. Peart thought that I saw her and she didn't like it because I acted indifferent about it. As a matter of fact, it was nearly dusk, and I saw some one get in the car, but I couldn't swear who it was, and I didn't know who it was; and then he went on to tell me. v. Without going into details, I will just ask you this general question: Did you learn about these matters on this occasion? A. I did."
There is no other word of testimony as to what Malanson told him. But he says that shortly before his conversation with Malanson he visited his daughter at Port Arthur and soon after he got there at a little after 9:00 A.M. deceased drove up in a car and started to get out, but his daughter called to him and said, "Papa is here," and she went out to the car and spoke a few words to deceased and he then drove off, giving a friendly wave of his hand to the daughter as he did so. This is the insulting conduct relied on by appellant as far as his daughter is concerned, and he says this visit to his daughter was also in December. We quote his testimony again:
"At the time Poteet drove up in a car and I was there, my daughter was married then. I couldn't give you the day of the week and the month and the year that that occurred, definitely; it was sometime in December but I don't know what time; sometime in December, 1922."
A little further on in appellant's testimony appears the following:
"On that occasion naturally I made the statement to her that Poteet was a home wrecker, and she said that I was only jealous, and I told her I positively was not."
And again:
"As to whether I thought Poteet was coming there to see her, he didn't have any business coming there, Mr. Scurlock. At that's time, I told her Poteet was nothing but a home wrecker. I did not say anything to her about Poteet coming to see her, and she never said anything about Poteet coming to see her."
If then appellant knew and believed nothing against his wife and deceased until after he talked to Malanson, it would appear a little strange that he knew and believed deceased to be a home wrecker and so stated to his daughter when he saw deceased in front of her house on the morning of the alleged misconduct. What then? We quote further from his testimony:
"I saw him drive up there before Malanson told me this, and then after Malanson told me this, due to the fact that he did drive up there when Mrs. Peart was away in Louisiana. No, I didn't see him after Malanson told me she got in the car with Mr. Poteet. Malanson *Page 200 told me that in December, 1922. I saw him drive up to my daughter's some time shortly after that. I wouldn't be positive whether it was after he told me he saw my wife get in Poteet's car or before that that he drove up to my daughter's house in Port Arthur; but I know that he drove up there."
The conduct of deceased in driving up in front of the home of the daughter of appellant, as above referred to, is the only act of deceased upon which could rest any claim that deceased was guilty of insulting conduct toward her. The fact, as testified to by appellant, that a man told him a few days before the homicide deceased said to a group of men on the street that he would have to leave them as he had to go and look after (using a vulgar word), the inference being that he was going to have intercourse with some woman, in which utterance the deceased by no word, act or expression suggested any particular woman, — seems wholly irrelevant to this contention of appellant.
We think the facts do not call for the submission of the law of manslaughter as affirmed in our original opinion, and that appellant did meet deceased at his daughter's home after he had information and believed him to be a home wrecker, and that he did not then attack deceased at this first meeting after learning of the fact, as asserted in his own testimony, that deceased had wrecked his home; but if we be not correct in this, then we are further of opinion that the charge of the trial court, which gave the jury the right to acquit him of murder and to convict only of manslaughter if they found appellant's mind to be so inflamed by passion arising from any adequate cause as to render him incapable of cool reflection at the time of the homicide, — was favorable to appellant. This authorized the jury to consider all the testimony that he could produce showing wrong conduct between his former wife and deceased and the communication of this fact to him, and also permitted them to take into consideration the information that his former wife was going to marry deceased, etc.
In reference to the contention of appellant here made that when the court below overruled his application for continuance and notation of that fact was made on the docket, this obviated the necessity for a bill of exceptions properly authenticated by the court complaining of such refusal, we observe that on page 183 of Mr. Branch's Annotated P.C. he cites many authorities holding that docket or judgment entry will not take the place of a bill of exceptions. The propriety of this conclusion finds illustration in the case before us. Among the witnesses for whom the continuance was asked was one Berwick, and it is made to elsewhere appear that Berwick came in and was present at court during this trial but was not used as a witness by the appellant. If this court was bound by the notation *Page 201 made by the court below upon his docket of an exception, to the overruling of an application for continuance, even though all the witnesses appeared and testified, or appeared and did not testify, the trial court would have no opportunity to make this fact known in his qualification to a bill of exceptions, and appellant would be given the benefit of something to which he was not entitled.
Believing appellant's contentions not tenable, his motion for rehearing will be overruled.
Overruled.