Conviction is for murder; punishment fixed at confinement in the penitentiary for a period of seven years.
It is insisted that the court erred in submitting the issue of murder and claimed that no evidence supports a higher degree of homicide than manslaughter.
Appellant was the owner of a farm. Alex Stevens was a tenant. Judge Stevens, the deceased, was the son of Alex Stevens and resided with him. Appellant shot and killed Judge Stevens at the home of his father. The eyewitnesses were Alex Stevens and Richard Denson.
According to Denson, when appellant arrived, Alex Stevens had gone for some water. Deceased was cutting wood. Appellant spoke first and told the deceased that he thought he was going to cut some posts as he had promised to do. The deceased replied that he was cutting wood and did not intend to cut posts, whereupon the appellant remarked that he would get some one there that would do so, when deceased cursed appellant, who told him not to do so, accompanying his words with a motion indicating that he would pick up something. Deceased wheeled and went into the house and got his gun. His father, approaching, hollered to him not to get his gun, and when the deceased appeared with it, appellant grabbed it. The witness ran around the house and later saw the deceased run and appellant following him. He saw the deceased look around, heard the report of a gun, and saw the deceased fall. At the time he was shot, the deceased was running.
Alex Stevens' description of the main facts, in substance, coincide with that of Denson. He also said that when the deceased came out of the house with the gun, he (the witness) took hold of him; that appellant was some ten or twelve steps distant, and that while he was contending with his son, the appellant rushed up and snatched the gun out of his hand, and the boy ran toward the south around the west end of the house. Williams ran after him, and on reaching the west end of the house, he fired, the distance between them being about sixteen steps. The deceased was struck in the face and died in about an hour.
The appellant testified that before going to the scene of the homicide, he was requested to do so by Alex Stevens, who said that he was not progressing with his work because his son would not help him and asked the appellant to come and see him; that there had been a previous promise to cut some posts; that on reaching the premises, he engaged in a conversation with the deceased, who finally began to curse him and said: "I have been wanting to kill you, and I will just kill you;" and ran and got his gun; that his father, who was approaching, hollered and tried to stop him; that the deceased leveled the gun at appellant before the old man arrived at the house, while he was approaching with the water; that he undertook to get around the corner of the *Page 453 house and deceased came after him, when he grabbed the gun and engaged in a scuffle, in which the father took part, and said:
"Me and Uncle Alex and Judge were all scuffling, and if Judge run I didn't see him. I didn't know anything else until the gun fired. So Uncle Alex ran on me for the gun, but I never turned the gun loose and I wheeled and went off and by the time I got half way between my house and where Uncle Alex Stevens lived, I heard him say: `Judge is dead.'"
There was some evidence about measurements and about the location of objects bearing upon the ability of the witnesses to see what took place. We regard it as simply bearing on any conflict in the evidence concerning the incidents immediately attending the homicide, and not as raising any question of law.
Counsel takes the position that upon the undisputed evidence, the appellant went to the premises unarmed, upon the invitation of the deceased's father, upon a peaceful mission and for a lawful purpose, and that the manner in which the homicide took place and the facts immediately preceding it excluded the theory of malice, as a matter of law. Granting that there was evidence which might have reduced the grade of the offense to manslaughter, whether it did so would depend upon the condition of appellant's mind; necessarily a question of fact. There was some evidence of a previous difficulty antedating the homicide some months. To characterize the case as murder, it would not be necessary that the jury believe that the appellant had the intent to kill the deceased when he went to the home of Alex Stevens. He might, at any time, thereafter have formed the intent and be guilty of murder unless, at the time, his mind, from an adequate cause, was in a state rendering him incapable of cool reflection. This principle is illustrated in the case of McCoy v. State, 25 Texas Rep., 37, which is cited by the appellant. See, also, Jones v. State, 29 Texas Crim. App., 340; Farrer v. State, 42 Texas Rep., 265; Atkinson v. State, 20 Texas Rep., 52; Duebbe v. State, 1 Texas Crim. App., 159.
We are referred by the appellant to West v. State, 2 Texas Crim. App., 460; Moffatt v. State, 35 Tex.Crim. Rep., 33 S.W. Rep., 344; Mason v. State, 72 Tex.Crim. Rep., 163 S.W. Rep., 66; Burton v. State, 77 Tex.Crim. Rep., 178 S.W. Rep., 334. These cases each pertinently support the proposition that if, under the facts in the instant case, the court had failed to charge upon the law of manslaughter, it would have been in error, but as we comprehend them, none of them support the contention urged by the appellant that it was the duty of the court to omit from the charge the issue of murder. The facts in evidence may have been such as justified the jury in concluding that adequate cause existed. This was a question for the jury, and the effect of proof of adequate cause, upon the mind of the accused was a question of fact. The jury must decide whether there was adequate cause for passion and whether the passion existed and whether it rendered the mind incapable of cool reflection. Such is the *Page 454 statute, Article 1137 of the Penal Code, which says, in substance, that in order to reduce a voluntary homicide to the grade of manslaughter, it is necessary that not only adequate cause exist but it must produce passion as described by the statute rendering the mind incapable of cool reflection. Such has been the construction in Branch's Ann. Texas Penal Code, Sec. 2029 and cases listed; also, Sec. 2002. If there be an exception to this rule (see Doss v. State, 43 Tex.Crim. Rep.), the case before us is not within it.
The state of appellant's mind at the time he formed the design to kill was a question of fact and not of law. In its charge, the court informed the jury concerning the law in a manner to which there is addressed no complaint. We believe that we would not be warranted in holding that there was no evidence upon which to predicate the charge upon murder or that the evidence in the record was not adequate to support the conviction for that offense.
The judgment is affirmed.
Affirmed.
ON REHEARING. December 21, 1921.