Appellant was convicted of murder in the second degree, the punishment being assessed at confinement in the penitentiary for a term of five years; hence this appeal.
Appellant reserved a bill of exception to the action of the court in regard to the testimony of E.H. Carter, county attorney. The bill presenting this matter is in this wise: "The State, through its district attorney, read before the jury, the following statement of the witness Vaughan, who had testified before, in behalf of defendant on the examining trial, wherein said Vaughan stated, he was present during the examining trial and that he heard one Joel Whitfield testify; and that he did not tell E.H. Carter, the county attorney, that his evidence would be substantially the same as Whitfield's, and if he wanted him to, he would adopt Whitfield's evidence as his own, whereupon the State then introduced E.H. Carter, county attorney, who testified that Vaughan did tell him immediately after Whitfield had testified that he, Vaughan, would testify substantially the same, and that he would adopt Whitfield's statements as his own, if he desired it." Appellant objected to said evidence because the same was irrelevant, immaterial and prejudicial to the rights of the defendant, because it was an attempt on the part of the State to impeach the witness Vaughan upon an immaterial issue; because there *Page 385 was no evidence introduced as to what witness Whitfield testified in the examining trial; nor did the State introduce or prove that said Whitfield testified in the examining trial the same as he did in the present trial, no evidence being introduced to show that witness Whitfield testified at the inquest trial, that he was present and saw the difficulty, and the jury was not informed in any way that Whitfield testified on the inquest trial. The court explains this bill by stating, that Whitfield did testify on the examining trial, and that the witness Vaughan heard the testimony. We do not regard the explanation as relevant, or affording any reason for his action in the premises. An examination of the bill fails to disclose how or why this testimony was adduced. It is not shown what the witness Whitfield testified on the examining trial, and it is not shown that the witness Vaughan testified differently on this trial from what he had testified before the examining court. The grounds of objection are not a part of the bill in this respect. The facts attending the introduction of the evidence and connected therewith, should have been stated. It may be, under proper circumstances or conditions, the testimony might have been admissible. At any rate, not having the testimony before us, we cannot determine that its admission was calculated to prejudice appellant.
Bills 3 and 4 embody exceptions to the argument of the district attorney. In the first of these bills it appears that the district attorney stated, "This defendant is guilty of one of the most cruel and diabolical crimes ever committed in this county; and you cannot as good citizens of this county turn this defendant loose, and I want to tell you, if you do, every good respectable citizen within the borders of Shelby County will hang their heads in shame." The first portion of this statement of the district attorney may have been a proper deduction from the testimony and may have been permissible. As presented, we cannot say it was not. The last portion, however, tells the jury, in substance that unless they convict appellant, every good and respectable citizen within this county would hang his head in shame, could not be authorized from the testimony. It has been held that an invocation or appeal to the jury by a menace of this sort, is not permissible. However, no charge in writing was requested on the subject and refused by the court; and we do not regard it of that character which would authorize a reversal. And again, the district attorney in his argument is shown to have made these remarks, — "The defendant, unlike the hyena who digs in the grave for the body of the dead and buried, while the defendant revels in living streaming blood of his victim; that he took the life of Old Man Judge and walked away from his lifeless body with blood dripping from his hands, calm, cool and deliberate; and his attorneys come here and ask you to acquit him. It may be that defendant's counsel have some one man on this jury whom they expect to hang it, and no doubt expect by such means to induce and persuade some one to hang it, but you Askew, you Wes Darnell nor you Bob Williams can't afford to hang the jury." The court explains as to this latter portion that the counsel for defendant in their address to the jury had called names of Turner and others, and the district *Page 386 attorney in referring to that matter had used the language. We held in Kugadt v. State, 38 Tex.Crim. Rep., referring to defendant as a hyena, in the connection in which it was used, did not constitute reversible error. In that case, the court immediately reprimanded counsel for the State and instructed the jury to disregard the same. In this case, however, while there was an attempt to differentiate between defendant and a hyena, it was rather to the disparagement of defendant. The court's explanation, that the district attorney referred to the jurors by name, because defendant's counsel had done so, may explain that matter. But it hardly explains the reference that appellant's counsel had succeeded in stocking the jury with some man to hang it. These remarks were uncalled-for and reprehensible; but no written request was made of the court, instructing the jury to disregard the same. We do not believe that they are of that character, as to cause a reversal, in the absence of such requested written instruction, the refusal of the court to give the same, and exception reserved thereto.
We do not believe the action of the court, with reference to permitting the district attorney to talk with the witnesses while they were together was error. The court explains that this request was granted before the witnesses were placed under the rule, though after the rule had been invoked. The better practice would have been, when objection was made, to have authorized the district attorney to talk with the witnesses separately.
Appellant objected to that portion of the charge of the court as follows: "Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, is not adequate cause; but an assault and battery, causing pain or bloodshed, is adequate cause." This is the language of our statute on the subject; and appellant relied on an assault, as adequate cause to reduce the homicide to manslaughter. The court properly left the question as to whether or not under the circumstances, the assault caused pain, or whether the assault, in connection with the other facts or circumstances in evidence, was such as to afford adequate cause.
And again, this portion of the charge of manslaughter, is objected to: "In order to reduce a voluntary homicide to the grade of manslaughter, it is necessary not only that adequate cause exist to produce anger, rage, sudden resentment or terror, but that such state of mind does actually exist at the time of the killing. By this is meant that a killing which would otherwise be murder will not be reduced to manslaughter, because of the existence of some one, or all of the provisions referred to above, unless there was adequate cause to produce such passion; nor will a killing which would otherwise be murder be reduced to manslaughter because of the existence of adequate cause, unless at the time of the killing the mind was incapable of cool reflection by reason of the existence of some one, or all of the provisions above referred to. In other words, to reduce a killing from murder to manslaughter there must be a concurrence of both passion, such as anger, rage, sudden resentment or terror, and adequate *Page 387 cause to produce such passion." This charge was objected to, as erroneous on several propositions; but in our opinion, it announces a correct rule of law. That is, our statute requires that both passion and adequate cause to produce it, must combine in order to reduce a killing which would otherwise be murder to manslaughter.
This portion of the charge on manslaughter is also objected to, — "But if you find, beyond a reasonable doubt, that the defendant is not justifiable, and you find that defendant cut and killed Judge with a knife, under the immediate influence of sudden passion, arising from some adequate cause, then you will convict him of manslaughter." And again, "If you find that defendant cut and killed F. Judge with a knife, and you find that, beyond a reasonable doubt, he was not justifiable; and you further find, beyond a reasonable doubt, that at the time of such killing (if any) he (the defendant) was not laboring under the influence of passion, such as anger, rage, sudden resentment or terror, arising from some adequate cause, then you will convict him of murder." In our view, both of said charges, in the connection where they occur in the general charge given by the court, not only announce correct propositions of law, but were applicable to the case. The latter instruction is not incomplete in the connection wherein it was used, but very properly required the jury to believe beyond a reasonable doubt, before they could find him guilty of murder, that he was not justifiable, and then to believe beyond a reasonable doubt that he was not guilty of manslaughter. That is, he was not laboring under the influence of passion engendered by an adequate cause at the time of the homicide.
Appellant complains that the court failed to deliver to the jury all of the law of manslaughter applicable to the case, and sets out in his motion for new trial the elements which he insists should have been given to the jury on that subject. We do not deem it necessary to quote the entire charge of the court on the subject of manslaughter; but an examination of the court's charge shows the court instructed the jury on the subject of adequate cause, and on the subject of passion engendered by such cause; and instructed them that they could look, not only to the cause at the time of the homicide, but they could view said cause from all the circumstances in evidence hearing on that provocation. Besides, it instructed the jury that, any condition or circumstance, or any combination of conditions or circumstances, which is capable of creating some one or all of the conditions of mind above referred to, may be adequate cause; and in determining whether or not adequate cause existed to produce anger, rage, sudden resentment or terror, the jury will look to all the evidence in the case, previous relation of the parties towards each other, the relative strength and size of the parties; and then told the jury, if they should find by reason thereof, the mind of defendant at the time of the killing was incapable of cool reflection, and they believed the facts and circumstances were such as to produce such state of mind in a person of ordinary temper, then the cause would be adequate, and a killing under such circumstances, if not justifiable, *Page 388 would be manslaughter. It occurs to us, taking the whole charge together, it is an admirable presentation of this phase of the case in connection with the facts in evidence; and it was not necessary to have gone farther, as is insisted by appellant.
We have also examined the charge on self-defense, and it properly presented that issue to the jury.
Appellant complains that the verdict of the jury is not supported by the evidence. We cannot agree to this contention. True there is some testimony tending strongly to show that deceased brought on the difficulty, first calling appellant a "ditcher," evidently intended to disparage him, to which appellant replied, he was not a ditcher but a gardener, as he had been working in the garden that morning. He then accused appellant of having a pistol on him, and wanted to search appellant. This appellant was not willing for him to do; but authorized another person present to search him. Then, after some words between the parties it seems the fight began. The testimony tends to show appellant did not strike the first blow, yet deceased only struck him with his hands. There is no testimony tending to show he offered to strike him with anything else. Appellant at the first began to cut and slash deceased with his knife; and evidently continued to cut and stab deceased when it was no longer necessary. After he had vitally stabbed him in several places, and after deceased had fallen to the floor, and his life-blood was gushing out, one or two witnesses state he reached down and caught deceased by the ear and continued to cut his throat. We apprehend the jury took the view that there was no necessity for him to have used the knife in his self-defense, but there was enough of brutality in his onslaught to indicate that he was instigated by malice, while the jury found him guilty of murder in the second degree and gave him the lowest penalty for that offense. If the charge of the court had been unfair with reference to self-defense or manslaughter, appellant might have some reason to complain, but we fail to find any such ground for complaint in this record.
There being no errors in the record, the judgment is affirmed.
Affirmed.
[Motion for rehearing overruled without written opinion. — Reporter.]