Appellant was prosecuted and convicted of murder in the second degree and his punishment assessed at five years in the penitentiary.
Although requested so to do, the court refused to submit the issue of manslaughter, and the main contention is that the court erred in not so doing. If the evidence offered in behalf of appellant raises this issue, although the State's evidence would make it an aggravated case of murder in the second degree, it would be error to refuse to submit the issue. Appellant testified, and the other witnesses testifying in his *Page 631 behalf would support his contention, that he and deceased had been friends; that while he was not aware of it at the time, yet, as a fact, two of their sons had had previous trouble; that he and his son started from the sorghum mill, where he and deceased had both been at work, to go home; that he and his son got in the buggy, and his son set the gun down, when Sam Tilley came running to the buggy, with an elm club in his hands and said, "Sam Shaw, I am going to knock you out of the buggy, you son-of-a-bitch," and Sam Shaw replied: "You stop there." Appellant says deceased then came up and said, "Stop, Sam Shaw, you can't call him (Sam Tilley) a bastard." That he rolled up his sleeves and cursed appellant's son, Sam Shaw, when appellant expressed a desire to stop the matter, and deceased, he says, ran between his buggy wheels, popped his fist in his hands, cursed them both and said he could whip both of them, calling them both d__n s__n of a b__s. That appellant then secured the gun, stepped out of the buggy, and when deceased advanced, pushing up his sleeves, he requested him to stop; that deceased did not stop but he and Sam Tilley both advanced on him, Sam having a heavy club in his hands in a threatening attitude, deceased at the time advancing rolling up his sleeves, when appellant shot him. The court charged on self-defense and his right to kill if those facts were true, telling the jury that if it reasonably appeared to appellant from the acts and conduct of deceased or Sam Tilley, or either of them, that they or either of them was about to make an attack on him, to acquit him. There is no sort of complaint as to the charge on self-defense, the court having virtually given the charge requested by appellant, but appellant insists that this evidence raises the issue of manslaughter as well as self-defense. Article 1131 of the Penal Code provides that insulting words alone do not constitute adequate cause to reduce an offense to manslaughter, and in Clore v. State, 26 Texas Crim. App., 624, it is held that sudden passion, though overpowering the reflective qualities of the mind, will not, unless produced by what is in law adequate cause, reduce a homicide to the grade of manslaughter, it being so provided in article 1137. See also McKinney v. State, 8 Texas Crim. App., 626; Hill v. State, 11 Texas Crim. App., 456; Neyland v. State, 13 Texas Crim. App., 536; Childers v. State, 33 Tex.Crim. Rep.; Eggleston v. State, 59 Tex.Crim. Rep.. There being no issue of manslaughter in the case, the complaints of the charge of the court on murder in the second degree present no error, appellant being assessed the lowest penalty for that offense. There are in the record no exceptions to the introduction or rejection of testimony, and no bill to the remarks of the county attorney complained of in the motion for new trial. If the county attorney used such remarks it would be necessary to verify that part by a bill of exceptions before we would be authorized to review it.
The judgment is affirmed.
Affirmed. *Page 632
ON REHEARING. November 5, 1913.