Appellant was convicted of murder in the second degree, the penalty assessed being five years in the penitentiary.
Appellant reserved a bill of exceptions to the testimony of the witness Dillard, a deputy sheriff. At the time of the killing, this witness states, he was at the sheriff's office, about 100 yards from the scene of the killing; that upon hearing the shot he started towards the square, and en route met a man by the name of Fox and defendant. He asked them what was the trouble, and they told witness about it; that he then told defendant to step inside the sheriff's office, and he did so. He and defendant had a few words behind the door, and he told defendant he would have to take him to jail. Defendant said all right. Witness turned and went to jail with defendant. That Fox and defendant began talking, and witness told defendant not to talk, that he did not want to take the stand against them; that witness just remarked to defendant they wanted to tell him something about. Witness told Fox not to say anything to him, that he did not care to hear anything about it; that defendant said a few words to him, and witness told him not to say anything about it; that he did not want to know anything about it at that time; that witness was boarding with defendant; that when defendant said something about the blood on his hands, defendant was under arrest; that witness asked defendant how the blood came on his hands, and defendant replied he did not know. Witness then said, "Uncle Frank, come on to jail." They then started to go to jail, and as we were passing down the steps of the courthouse defendant remarked he was not sorry he shot deceased, saying he "was not sorry he shot the damn son of a bitch." Objection was interposed to this testimony because there was no warning given; defendant being under arrest; no sufficient predicate being laid for this statement. It appeared to the court that the statements made by defendant were within a few minutes after the homicide, while defendant was still excited from the occurrence; were freely and voluntarily made by him, and were clearly res gestae and admissible. This bill was prepared by the court. Of course this evidence was not admissible as a confession, because defendant was under arrest and had not been warned. This is recognized by the court, and therefore he certifies it was res gestae. It is not clear from the statements of the bill how long this occurred after the transaction, but it could not have been a very great while, for the court says a very few minutes. We are of opinion the admission of this testimony was correct. Bateson v. State, 10 Texas Ct. Rep., 208.
Exception was reserved to the court's charge on manslaughter. The *Page 295 court gave the usual stereotyped definition of manslaughter under the immediate influence of sudden passion and adequate cause. Among these charges was, that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. As an adequate cause, the court instructed the jury that an assault and battery by deceased causing pain or bloodshed is one of the adequate causes under the law. There was testimony to the effect that appellant was struck by deceased in such manner that it caused pain and bloodshed. There was quite a lot of testimony introduced showing previous altercations between the parties; that deceased had made threats and had otherwise insulted appellant, and used language that was calculated and did tend to inflame his mind; that these troubles mainly grew out of the fact that deceased owed defendant a board bill, which he had disputed and refused to pay, but did subsequently agree to pay a portion of it, and this seems to have been the inception of serious troubles, wordy altercations between them, and threats on the part of deceased towards appellant. It is not necessary to detail these. As before stated, the court charged the provocation must arise at the time, and that the passion must not be the result of some former provocation; and further that an assault and battery by deceased causing pain or bloodshed would be adequate cause. Now, the court, applying the law, thus charged the jury: "If from all the facts and circumstances in evidence you believe beyond a reasonable doubt that defendant, F.M. Johnson, did, in Tarrant County, Texas, on or about the 13th day of September, 1902, and before the filing of this indictment, unlawfully kill J.P. Robinson, by shooting him with a pistol, and that such killing was committed under the immediate influence of sudden passion on the part of defendant, as the expression `under the immediate influence of sudden passion' is above defined, and that the same arose from an adequate cause, as the expression `adequate cause' is above defined, then it will be your duty to find defendant guilty of manslaughter," etc. The objection urged is that this is too restrictive, and confines the jury in their examination of adequate cause to the provocation occurring at the time of the difficulty, and eliminates all the prior acts, words and conduct of the deceased toward appellant from the consideration of the jury in determining the adequacy of the cause or the sufficiency of the provocation to reduce to manslaughter. The immediate facts from the defendant's standpoint were, that they had had a previous unpleasant wordy altercation, and on the same evening, and not a great while before the tragedy, later, as he was returning home he was met by deceased, who struck him a lick that caused pain; and it is shown that subsequent to this transaction he had blood on his person and hands, and perhaps on his head; that they got into a wrangle over the pistol deceased had, and during that trouble or scuffle the pistol was discharged and deceased killed. Under all these facts and circumstances we believe this charge was too restrictive. While it is true, if deceased struck him with a pistol and produced pain or bloodshed, *Page 296 either or both, and that enraged him beyond cool reflection, and he shot and killed deceased under those circumstances, the offense would be manslaughter, appellant had the right, under our decisions and law, to have the jury view not only the facts and circumstances immediately attending the killing, but also those which preceded the difficulty, showing adequate cause, or tending to render his mind incapable of cool reflection. The decisions on this question are unbroken. We refer to Bracken v. State, 29 Texas Crim. App., 362; Orman v. State, 24 Texas Crim App., 495; Spangler v. State, 55 S.W. Rep., 326.
Several bills of exception were reserved to the argument or statements of the prosecuting attorney in his closing address. These were entirely outside the record, and had no connection with the case, and referred to the hanging of Morrison for the murder of his wife, and the conduct of the former mayor of the city of Fort Worth eloping with a telephone girl, and matters of this character. Unwarranted speeches and statements that may tend to inflame the minds of the jury outside and beyond the facts of the case should not be indulged; and the trial courts should promptly suppress such statements, as was done by the trial judge in this instance, for which we commend the court. These matters are getting to be too frequent in occurrence.
The judgment is reversed and the cause remanded.
Reversed and remanded.