At a former day of this term the judgment herein was affirmed without reference to the statement of facts, which was stricken out on the ground that it was not properly before the court. The statement of facts was stricken out because it was transcribed in the record proper and was not sent up separately from the transcript, that is, the original statement of facts was not sent up. Appellant moves for a rehearing, and shows to the court that the clerk omitted to send up the original statement of facts, but transcribed it in the record that was sent up without his knowledge. As the matter is now presented on the motion for rehearing, the original statement of facts is sent up showing that the evidence sent up in the transcript is a correct copy. It is also shown that the statement of facts was filed within twenty days from the adjournment of court, and that there was an order entered for that purpose. It is not clear whether this is a stenographic report of the evidence or not, but the statement of facts was filed within twenty days, and under any view of the law such filing was within time. Whether it should have been transcribed in the transcript, or sent up separately with the transcript, so far as this case is concerned, is wholly immaterial for the reason that under any view of the law the statement of facts *Page 103 was filed in time, and we have the statement of facts before us, both the original and the copy in the transcript. We are of opinion, therefore, that the case should now be considered with the statement of facts before the court.
We do not care to review the bills of exceptions and matters considered in the original opinion. There is one matter, however, which we think entitles appellant to a reversal of the judgment.
Briefly stated, the facts show that on the night of the difficulty between appellant and the man he is charged with shooting, Ike Hawkins, there had been a social function among the negroes in the neighborhood, which lasted until about midnight. Appellant, Hawkins, and several other named parties went from the party to where Pearl Randolph's house had been burned. Two of the parties went in their wagon for the purpose of hauling some hogs away that were supposed to be in a pen. They were to take the hogs the following morning. Near by was a lake. Upon reaching the house the two parties controlling the wagon took their horses out and fed them. A crap game was inaugurated promptly. Ike Hawkins, the assaulted party, testifying for the State, placed several of the parties in the game. All the other witnesses state there were only three engaged in the game, Hawkins and appellant being two of them. After playing a short time trouble ensued between Hawkins and appellant with reference to a bet, appellant claiming to have won the money. Hawkins denied it and took the money. In a few moments another trouble arose between the same parties in reference to another bet, appellant remarking: "By God, I am a son-of-a-bitch if I didn't win the money." Hawkins suggested to him to go to the graveyard and dig up the dead body of his mother. Appellant told him not to speak of his dead mother, whereupon Hawkins engaged him in a personal combat, as the witnesses say, slammed him down against the ground and was beating him over the head with a chair bottom when they interfered and pulled him off of appellant. Some of the evidence is to the effect that Hawkins kicked appellant in the side. When they were separated Hawkins went to the hog pen nearby and got him a piece of rail about five feet long and appellant ran. Hawkins chased him about seventy-five or eighty yards, and as appellant was getting through the fence Hawkins struck him twice with the rail. These blows inflicted pain upon appellant. One of the blows on the head cut a gash from which the blood flowed, and the sheriff testified that appellant surrendered to him shortly afterwards on the same night, and the next morning he noticed the bruise or cut on the head and the hurt in the side. Hawkins left the scene of the trouble, stating that he would get his gun and come back and kill appellant. Hawkins was gone for some time, about sixty minutes, and returned with his gun. In the meantime appellant secured a gun. In this connection it may be stated that when appellant ran away he left his hat which he had lost in the difficulty. He explained *Page 104 his return to the scene of the trouble by the fact that he wanted his hat. This was found and given him, and about this time Hawkins came upon the scene armed with a shotgun, and was standing off some forty or fifty steps. They all agreed that Hawkins called for one of the negroes by the name of Ennis McNeal. Hawkins says about that time appellant shot him twice from behind, and that after he fell he shot him in the eyes. All of the other witnesses testify that when Hawkins came appellant was standing talking to them with the end of his gun on the ground, and one or two witnesses state that it was the butt end of the gun on the ground. That when Hawkins called McNeal he raised his gun to his waist and appellant fired twice, and that there were only two shots fired. The facts seem to be undisputed that the gun was loaded with small shot, as indicated by the wounds on Hawkins. Hawkins dropped the gun when he was shot, and it was found there the next morning by the sheriff with the right barrel cocked.
The case was submitted to the jury upon the law of assault to murder, aggravated assault and self-defense. The jury convicted of assault to murder, and gave appellant two years confinement in the penitentiary.
The court, submitting the law of manslaughter with a view of submitting the further issue of aggravated assault, charged the jury in a general way that any circumstances which would render the mind incapable of cool reflection would form the basis of aggravated assault. Two exceptions are reserved to the charge in this connection: First, inasmuch as the statute authorizes a conviction of manslaughter, or failing in the homicide, of aggravated assault, with reference to blows inflicted causing pain or bloodshed, the charge was erroneous in not submitting it from this standpoint. While the shooting did not occur immediately in connection with the first fight in which appellant was struck on the head with a chair bottom and rail, we are of opinion the court should have instructed the jury in reference to this matter, and especially should this have been done in connection with a charge on cooling time. This brings up the second criticism of the court's charge in that the issue of cooling time was not submitted in any form. We think this is clearly erroneous. The evidence discloses that appellant had been beaten by Hawkins with a chair bottom and with a rail, and kicked severely in the side, and he was bleeding freely at the time of the shooting. This had occurred thirty to sixty minutes before the shooting. Unquestionably, this beating would have formed the predicate for manslaughter had the shooting occurred at the time. We are of opinion that a charge should have been given on cooling time in connection with this beating, which the evidence uncontradictorily shows caused both pain and bloodshed, and failing to give this charge under the circumstances of this case, the error requires a reversal of the judgment. Ross v. State,53 Tex. Crim. 277, and authorities cited. *Page 105
The motion for rehearing is therefore granted, the affirmance set aside, and the judgment is now reversed and the cause remanded.
Reversed and remanded.