In our original opinion we stated, in substance, that there was no evidence calling for the submission by the trial court of a charge on manslaughter, predicated on passion of the appellant himself. We had in mind, as raising manslaughter, only the matter of insulting words and conduct toward either Mrs. Monnie Henderson or appellant, and concluded that appellant could not rely on insulting words or conduct toward himself, same being unaccompanied by any violence. Art. 1131, Vernon's P.C. Nor could he claim the right to act on passion arising from any language or conduct toward his female relatives, for the reason stated in our opinion, that he was present when the said conduct occurred and the language was used and did not resent it. We also had it in mind that appellant's own evidence, if true, established his innocence of any wrongdoing; and that of the State, if true, made only a case of murder. A more careful consideration of the record makes us doubtful of the correctness of the last conclusion stated. It will be borne in mind that when the dispute arose over the turkeys, and appellant alone looked at those at the home of deceased, he said he could not identify any of them as his, but that his daughter-in-law could, and that at the subsequent visit said daughter-in-law did positively identify a number of said turkeys as being the property of appellant. Also that appellant's witnesses testified that deceased, on that occasion, told the party that they could look at the turkeys but could not take any of them away. It appears in the testimony of State's witness Sargent that the first words spoken of appellant to deceased, on the occasion of the homicide, were these "You poor yellow s_n of a b___h" and "You G_d damn s_n of a b___h, you have got my turkeys in this wagon, and G_d damn you, I am going to kill you," and that he then struck deceased with a stick and called on his son to "kill that s_n of a b___h." At that time it is undisputed that deceased had in his wagon a number of turkeys taking them to market. State witness Huey also swore after the killing Charles Henderson drove up to his house and told him that they had killed deceased, and when he asked what caused it Charles replied: "A G_d damn turkey mess." It is also in evidence by the State that subsequent to the dispute over the turkeys, and before the homicide, the parties met or were near each other in Longview and had no trouble on that occasion.
In the absence of any express proof of an agreement to act together in taking the life of deceased, the State insists on its right to deduce and infer such agreement from proof of what occurred at the place of the killing, and we agree that it has the right to have the law of principals submitted, and that the jury may settle this issue thus submitted in favor of the State. While this is true, we have concluded *Page 33 that the testimony also raises the issue of manslaughter, predicated on appellant's own mental condition at the time. It occurs to us that if one has a dispute over property which he claims, and same has been identified as his property by members of his family or others in whom he has confidence, who are better acquainted with same than he is; and soon thereafter he sees the other party to the dispute carrying to market property which he thinks to be that in dispute, and he accuses the party of having his property, and in the conflict slays him, this would present an issue of fact as to his mental condition at the time which ought to be submitted to the jury under appropriate instructions, for the appellant has the same right to have all the law applicable submitted to the jury, as has the State. In other words, while appellant and his son may have acted together, and may have had a common purpose, still they might have been actuated by different motives, and might even be guilty of different degrees of homicide. It can easily be seen that D., planning and purposing the death of A., might relate to B. a story of insulting words and conduct of A. toward a female relative of B. and might accompany the latter to A.'s house, and be present aiding and encouraging B., within our law's definition of principals, when B. took the life of A. under circumstances which would make B.'s offense only manslaughter. But on the trial of D. who did no act of personal violence to A., proof of the hypotheses above stated might justify his conviction for murder. Equally true might be the converse, that D, desiring to kill A. and wishing assistance, might relate to B. a false story of insults offered by A. to a female relative of both D. and B., and thus induce B. to accompany him to A.'s house, and the latter might be present when A. was killed by D., proof of which hypotheses might result in D.'s conviction of murder and B. only of manslaughter. These illustrations serve to enlighten our conclusion that appellant may have been so aroused over a belief that his property in dispute was about to be sold by deceased and thus put beyond reach of recovery, as to have caused in his mind, in connection with other facts and circumstances in evidence, a condition which would render it incapable of cool reflection, and this may have been the cause of his actions in the premises, and may have caused him to call upon Charles to shoot the deceased, and their acting together to encompass the killing may have been thus brought about. We are asserting no opinion as to the facts further than to say that they are sufficient to demand the submission of this issue to the jury. We recognize the fact that appellant denies the story of the State witnesses and attributes the killing to Charles Henderson alone, actuated, as his testimony suggests, by self-defense, and wholly independent of any agreement or pre-knowledge on the part of appellant, but this court has often held necessary charges on manslaughter based on evidence wholly contradictory to the theory and testimony of the defense. Appellant excepted to the charge as given because same did not present the issue of manslaughter based on his own passion, and *Page 34 having concluded that this should have been given, it follows that this motion should be granted, the affirmance set aside, and the judgment reversed and the cause remanded, and it is so ordered.
Reversed and remanded.