This case was affirmed at the Dallas Term, and now comes before us on motion for rehearing. Appellant's brief covers most of the salient features discussed in the original opinion, and takes issue with the court as to the correctness of its rulings thereon, and besides he raises some questions not treated in the former opinion.
We do not deem it necessary here to re-state the testimony as included in the original opinion, as the statement of the evidence of the two witnesses, Louey Thompson for the State, and appellant, on his own behalf, sufficiently stated the essential features of the case.
We note in the original opinion, in treating bills of exception Nos. 1 and 2, no stress was laid on the remarks of the court in admitting the testimony of Mrs. Walter Phelan as to the appearance of deceased when he came to her residence a few minutes after the homicide. The court appears to have permitted the testimony, as he stated to counsel, as to the condition of deceased at the time he came to said house, and the impression his appearance produced on the witness, because it would tend to show that deceased was not in a condition of mind to have disposed of any pistol he may have had in the interim between the time of the shooting at the saloon and when he appeared at the residence of Walter Phelan. Exception was taken to the remarks of the court in the presence of the jury, and a colloquy ensued between the court and counsel for appellant, and in the finale the court instructed the jury to disregard his remarks in toto, and thereupon requested counsel not to ask the court in future as to its reasons for making its rulings. *Page 279 Appellant insists that not only was the testimony inadmissible, but the remarks of the court were hurtful to appellant. On reconsideration of the matter we are inclined to the view that the impression produced on the witness Mrs. Walter Phelan was not admissible in testimony. No question was made as to the fatality of the wound, and that he had the appearance of death when he came to the house was immaterial. Moreover, the fact that deceased was very bloody when he came to said residence would serve to illustrate no issue in this case, and might be calculated, under the circumstances, to have inflamed the minds of the jury. The remark of the court as his reason for admitting said testimony furnished no reason for its admission, and was calculated to impress on the jury that the court believed it was very material testimony, showing that deceased had not disposed of any pistol which he may have had at the time of the shooting. The direction to the jury to disregard the same may or may not have cured the error. Nor do we think it was material to show how long deceased had been married to his wife. We would not be understood as holding that the above testimony would be of a reversible character, but as far as we are able to discover it serves to illustrate no issue in this case.
Bills of exception Nos. 10 and 11 relate to dying declarations of deceased. We believe that the testimony of Dr. Black constituted a sufficient predicate for the introduction of said dying declarations. This witness testified that deceased held out several days after the infliction of the wound, which he received on Saturday night, and died on Thursday evening following; that he seemed very hopeful all along, and made a hard fight, but just a short time before his death the witness was in the room where deceased was, and ten or fifteen minutes before he died deceased said he was going to die, and asked the witness to send for his family. We think this was sufficient testimony on which to predicate the introduction of his dying declarations, and that it was admissible for him to state the circumstances connected with his being shot by appellant, although the question put to him by the doctor that he asked him if he was armed when he was shot may appear to be somewhat leading. We do not think it suggested the desired answer, but merely served to call the witness' attention to the matter of whether or not he was armed, and, therefore, the answer elicited to same was not objectionable. However, we do not believe it was legitimate testimony to have permitted the witness to state that he told all of his family good-bye; that he told his brothers to be good men and meet him in heaven, and not to hurt anybody; that he kissed his wife good-bye, and said that he forgave the man who shot him. This the court explains was admitted in connection with the testimony of Dr. Black as laying the predicate for the admission of the dying declarations. The explanation is somewhat confused, but we take it that Dr. Black had already testified before any of this occurred, that deceased told him he was going to die, and asked him to send for his family, who were in an adjoining room, or some other room of the residence. If the predicate *Page 280 for the introduction of said testimony had been at all doubtful, it may have been permissible to have allowed so much of this as would tend to establish deceased's consciousness of approaching death; that is, that he told his wife and relatives good-bye, but the other portion of his testimony as to his advice to them, to wit: to meet him in heaven; not to hurt anybody, and that he forgave the man who shot him, was certainly not evidence to which deceased or any other witness could have testified to, had they been present at the trial, and was of a character calculated to prove exceedingly hurtful to appellant. Dying declarations at most are exceptions to the rule, which rejects hearsay testimony; when this character of evidence is admitted, it should be very carefully safeguarded, and nothing but an essential part of a dying declaration should be permitted to go to the jury, especially testimony calculated to inflame the minds of the jury, such as this was. It occurs to us that this was serious error. See Connell v. State, 10 Texas Ct. Rep., 890, and Medina v. State, 63 S.W. Rep., 331. For other authorities see White's Code of Crim. Proc., sec. 1008.
Bill No. 14 questions the admissibility to prove by appellant, on his cross-examination, that one John Majors came to see him while he was in jail, and that he said he was sorry, that he (appellant) was in trouble, and not to say anything, but to keep his mouth closed; to say nothing only to his attorneys. A colloquy ensued in regard to this testimony, which we do not deem it necessary here to copy: the record shows that Majors was not a witness in the case. We do not think this testimony was competent, and on another trial should be excluded.
Appellant strenuously insists that it was not proper for the State to show, as was done in this case, by the witness J.A. Prather, that Ed Prather, his brother, had given him a bribe to swear to fabricated testimony in favor of appellant. Consulting the bill of exceptions and the stenographer's notes, in this connection, it appears that the question came up in this wise: J.A. Prather testified in the case for appellant, and his testimony was, in the main, as to the homicide, as testified to by appellant himself; his testimony was closed on Friday. On the ensuing Monday he was placed on the witness stand by the State, and he testified that the testimony theretofore given in by him on behalf of appellant was fabricated; that he was not present at the time of the homicide, as testified to by him, and that all of his evidence theretofore given in favor of appellant was false; that neither he nor Conant were present in the saloon at the time the fatal shot was fired, as he testified to originally. It seems, in connection with his testimony, that the State desired to further prove by him that he testified from a written memorandum given him by his brother Ed Prather, which he was to swear to, and that Ed Prather promised that he should get $50 for his testimony, $29 of which was paid him; however, the court appears to have excluded this part of his testimony. Subsequently, Ed Prather was placed on the stand, and he was asked *Page 281 questions in regard to bribing his brother J.A. Prather to testify for appellant, as he had done; he denied that he had procured his brother J.A. Prather to so testify, and further denied furnishing his brother with a written memorandum or a statement of testimony to which he was to swear; he denied that he promised or paid him any money. Thereupon, the witness J.A. Prather was replaced on the stand by the State, and he was permitted then to state the facts as above shown, and to contradict the testimony of Ed Prather. This was objected to by appellant on the ground that appellant was not connected with said transaction; there was no testimony showing that he had any knowledge thereof, and that as to said matters appellant made said Ed Prather his own witness, and they were collateral and not material to any issue in the case and, therefore, the witness Ed Prather could not be impeached. In the absence of some showing that appellant was connected with this transaction, this character of testimony could not be adduced against him as original evidence. See Barbee v. State, 23 Texas Crim. App., 199, and Luttrell v. State, 40 Texas Crim. App., 653. The State appears to have been impressed with the idea that it could not offer this as original evidence against appellant, but that it could offer same as impeaching testimony. Therefore, it introduced the witness Ed Prather, who was a witness for the defendant, and laid the predicate by him for his impeachment by the evidence of his brother J.A. Prather in regard to the bribery transaction. After laying the predicate, J.A. Prather was again introduced, and contradicted his brother Ed Prather as to said bribery transaction. Of course, it will not be contended that this testimony is original testimony inhering in or appertaining to the case; it transpired long after the case. If appellant was shown to be connected therewith, it would constitute original testimony against him as a circumstance suggesting consciousness of guilt in fabricating testimony, and tampering with witnesses comes under that category, but, as stated, the evidence was not offered as original testimony, but as impeaching evidence. Clearly, it was introduced upon a collateral issue, and was confessedly offered to affect the credibility of the witness Ed Prather. Was it admissible for that purpose? We think the true rule on this subject was stated in Drake v. State, 29 Texas Crim. App., 265. "When a witness is cross-examined on a matter collateral to the issue, his answer cannot be contradicted by the party putting the question, nor is it proper to allow a witness to be cross-examined as to any matter which is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence." What is collateral has been well stated by Wharton in his work on Criminal Evidence, 9th ed., sec. 484; quoting from a Pennsylvania case, he uses this language: "The test of whether a fact inquired of on cross-examination is collateral is this: `Would the cross-examining party be entitled to prove it as part of his case tending to establish his plea?'" And see Hart v. State, 15 Teaxs Crim. App., 202, and Johnson v. State, 22 Texas Crim. App., 206. Applying this *Page 282 test, was the evidence here offered pertinent to the case, or was it a contradiction upon a collateral issue and not upon any issue involving defendant's guilt or innocence? Evidently it was upon a collateral issue, and both court and counsel so regarded it. The court attempted in its charge to limit this testimony to the impeachment of Ed Prather, but as has heretofore been held by this court, when illegal testimony for impeachment purposes has been admitted, and this of itself is of a hurtful character, it is impossible for the court to limit it so as not to prove injurious to appellant. See Cogdell v. State, 43 Tex. Crim. 178; Morton v. State, 43 Tex.Crim. Rep., and Casey v. State, 90 S.W. Rep., 1018.
Appellant insists that the court committed an error in failing to instruct the jury with reference to murder in the first degree, based on the first altercation between appellant and deceased, and cooling-time in connection therewith. We believe he is correct in this contention. The State used this first altercation as furnishing the motive for the homicide, and animus on the part of appellant for committing the homicide. One theory of the State, in this case, is to the effect that appellant went into the saloon of deceased, and because deceased refused to throw dice with him for the drinks, and used toward him insulting language in that connection, appellant left the saloon and procured a pistol, and in about fifteen minutes returned thereto and provoked the difficulty, which brought about the homicide. Now, evidently, this former transaction was used by the State, as it had a right to use it, for the purpose of showing that the intent on appellant's part to kill deceased was formed then; and it is insisted, from his evidence, that his mind was then cool and capable of forming the intent to kill, upon express malice; but we do not understand the rule to be, because appellant, in his own testimony, says that he was not excited by what deceased said to him on that occasion, as by any means conclusive upon this question, as there was other testimony in the case aside from his (appellant's) on this point, and in addition to this, the testimony shows that after he left the saloon, in company with Dunn, that he asked Dunn what he thought deceased meant by what he said, and insisted that the remarks were made for Dunn. Dunn replied that they were not meant for him, that he and deceased were on good terms; that they were meant for him, appellant. We believe if the killing had occurred on the first occasion of appellant's meeting with deceased on that night, their relations therefore being entirely friendly, and a casual difficulty ensuing, in which deceased insulted appellant, that if appellant had then slain deceased the court would have been bound to give a charge on murder in the second degree; and we further maintain if appellant's intent was then formed to kill deceased, and he went off after a pistol, or if his intent to kill deceased was formed after his conversation with Dunn, and he then determined to get a pistol and go back, and his mind was inflamed on account of the previous insult, either at the time it was given, or it became inflamed in his subsequent *Page 283 conversation with Dunn, and cooling-time had not elapsed before he returned and shot deceased, and no other facts intervened in the case, the court should have given a charge on murder in the second degree, based on what transpired at the first meeting, and in connection therewith he should have given the jury an instruction on cooling-time. It is said, however, that cooling-time is not applicable as between murder in the first and second degrees. Logically, we can see no reason why the question of cooling-time is not as much involved between the degrees of murder as it is between murder and manslaughter. A killing upon express malice can only be consummated when the intent is formed and carried out in a cool and deliberate mind. If the insult offered by deceased to appellant on the first transaction was calculated to excite his passion, which is a question for the jury, and the intent was then formed, and was carried out before cooling-time ensued, it would not be murder in the first degree. See Manning v. State, 85 S.W. Rep., 1149; Puryear v. State, 17 Texas Ct. Rep., 727; Sowell v. State, 32 Tex.Crim. Rep.; Keith v. State, 94 S.W. Rep., 1046, and Dixon v. State, rendered at the present term. We do not believe it was an answer to the above proposition that the court gave a special charge requested by appellant predicated on the first meeting between appellant and deceased, as this was on an entirely different phase of the case. That was a charge on murder in the second degree, and told the jury, in effect that if on the first meeting between appellant and deceased, deceased used insulting words to appellant, and appellant left the saloon and procured a pistol, and returned to the saloon for the purpose of making an explanation, and was seeking a peaceful adjustment of the differences, if any, between them, that appellant had a right to arm himself and seek such explanation, and that if the jury believed from the evidence that after he returned for such purpose, the deceased used insulting language to him, and defendant then and there became angered on account of the conduct of deceased, and defendant's mind became excited, and he was not cool and deliberate, and in such frame of mind he then formed the purpose of shooting deceased, and he then and there executed such purpose, that he would be guilty of no higher offense than murder in the second degree. This charge had no relation to a charge on murder in the second degree in connection with cooling-time predicated on the first meeting in the saloon, and nowhere does the court's charge on murder in the second degree take up and present the phase of the case above referred to. In regard to this question, we do not believe the point can be better presented than is done in appellant's brief, from which we quote, as follows: "It would be manifestly unjust, and unfair for the State to contend in one breath that the homicide was upon express malice, for the very reason that the State proved the appellant was grossly insulted by the deceased, and returned in a few moments and killed the deceased out of resentment, and that when he did so his mind was cool and deliberate and, therefore, the crime was upon express *Page 284 malice, and then instantly turn about and reverse the contention, when the appellant invokes the position upon a defensive question, and hold that appellant was not offended at the insults and did not arm himself and return and slay the deceased out of resentment. If there is evidence in the record to establish the insult and the resentment in order to prove express malice, then the same evidence remains in the case to show resentment upon the question of implied malice."
Appellant strongly insists that the court committed an error in not giving a charge to the jury on manslaughter. We have examined the record carefully, in this respect, and in our opinion the failure of the court to so instruct the jury was error. So far as this record discloses, it shows affirmatively, without controversy, that prior to the night of the homicide deceased and appellant were on friendly terms; both appear to have been engaged in the saloon business in the City of Waco; both it appears were members of a secret society known as the Eagles, and this matter was referred to by appellant during the altercation that lead up to the homicide. Appellant went into the saloon of deceased, and there proposed to throw dice for the drinks; deceased refused to throw dice for the drinks, and in that connection used insulting language toward appellant. In this connection it may be well to quote from one of appellant's witnesses what occurred on that occasion. "Appellant proposed to shake for the drinks, and he invited Luther Phelan to shake. Luther walked around behind the show-case, and Mark said `Come on, let's all shake for the drinks' and the deceased said `No, I don't want to shake' and Mark reached around and got deceased by the hand, and said, `Well, come on and have a drink then,' and he asked deceased what was the matter. Deceased said, `I don't want anything to drink,' and he further said, `I don't want you or any of your kind around here.' When deceased made use of these remarks he seemed to be a little bit angry; he seemed to be worried about something. Mark reached over the bar and asked deceased what was the matter with him, and got him by the hand and said, `Why Luther, what is the matter with you?' He spoke in a kind of kidding way, and Luther remarked to him, `I don't want anything to drink, and furthermore, I will come out there and mix it up with you.' Deceased acted angry when he said he would come out and mix it up with him. Mark told Luther he didn't understand him, and he wanted to know what he was mad about; that he (Mark) had come around there to spend his money," etc. Appellant it seems, after throwing for the drinks, and getting "stuck" as the witnesses term it, set them up; all drank, and he and Dunn retired from the saloon. As they were walking away, appellant suggested to Dunn that deceased had it in for him (Dunn) and asked him if there was anything between them, to which Dunn replied, no, he had nothing against him; that he (appellant) was the man deceasd was after. Thompson and other witnesses show that in about fifteen minutes appellant returned. The State's witnesses show circumstantially that during his absence appellant must have procured a pistol. *Page 285 Appellant testifies, however, that he had the pistol before they went to deceased's saloon the first time. On coming back into the saloon the second time, appellant states that when he came in Luther Phelan was just closing his register; as he closed the register he took a pistol out of the drawer and stuck it in his right hip pocket, and walked around to the end of the bar, and defendant said, "Come and let's take a drink, to which deceased replied, "God damn you, I don't want anything to drink," and walked on as though he was going out, and got about even with him (appellant). "I said, `we are both brother Eagles, let's drink and be social'; he says, `God damn you and the Eagles too, I know when I want a drink, and who to drink with.' I said, `What's the matter; are you drunk or crazy?' He says, `No, I am not drunk, you God damn one-eyed son-of-a-bitch; and if you say or even think that I am crazy, I will kill you like a damn dog.' Then he walked on like he was going out. Just as he got to the screen door, he turned around and said, `If you even think I am drunk or crazy, you God damn son-of-a-bitch, I will kill you,' and then I shot." Now, for the purposes of a charge on manslaughter, we must take as true the testimony of appellant's witnesses, at least for the purpose of measuring out the case to the jury so that they may pass on the facts. Does this evidence raise the issue of manslaughter? The statute says that mere insulting words or gestures are not adequate cause for manslaughter, but here we have something more. If appellant's witnesses are to be believed, he was not only insulted on the first occasion of his going into the saloon, but these insults were intensified, and the vilest epithets were applied to him on coming into the saloon the second time. In addition to this, he states that deceased made a demonstration, and got his pistol out or partly out at the time he shot. This testimony evidently, in the mind of the court, raised the issue of self-defense, and the jury were instructed on the theory of self-defense. The jury did not believe that theory. They might not have believed the theory of manslaughter, but the facts of the case required the court to present that issue to them. Here we have more than mere insulting language; we have demonstration. Appellant may have fired too quick to have been justified on the ground of self-defense, from his own standpoint, predicated on his testimony; his mind may have become excited from the exasperating insults offered to him, and he was not able to see clearly and act with coolness. The question is, was there adequate cause? We think, under the authorities, there was. As has been repeatedly held, the illustrations given in the statute, as to what constitutes adequate cause, are but illustrations of what may constitute adequate cause. The statutory definition of adequate cause is a provocation at the time, which either of itself or in connection with antecedent facts and circumstances is sufficient to render the mind of a person of ordinary temper incapable of cool reflection. It is not necessary to cite authorities, but there are numerous cases in the books where the circumstances are similar or somewhat similar to those involved in this case, it has been *Page 286 held that it is the duty of the court to charge on manslaughter. See Keith v. State, 94 S.W. Rep., 1044; Harris v. State, 89 S.W. Rep., 1064; Lundy v. State, 87 S.W. Rep., 352; Gray v. State, 83 S.W. Rep., 705; Armsworthy v. State, 88 S.W. Rep., 215; Lewis v. State, 89 S.W. Rep., 1073; Baltrip v. State, 30 Texas Crim. App., 545; Hawthorne v. State, 28 Texas Crim. App., 212; Gilcrease v. State, 33 Tex.Crim. Rep.; Norris v. State, 61 S.W. Rep., 495; Neyland v. State, 13 Texas Crim. App., 549; Howard v. State, 23 Texas Crim. App., 279; Williams v. State, 7 Texas Crim. App., 396; Hobbs v. State, 16 Texas Crim. App., 517, and McLaughlin v. State, 10 Texas Crim. App., 340.
Coming to some minor questions, we will observe that in another trial of this case, we do not believe the court should charge on the use of more force in the charge of self-defense, as there was no testimony indicating the use of more force. If appellant had a right of self-defense at all, the question of the use of more force was not involved. See Scott v. State, 81 S.W. Rep., 951.
We believe, furthermore, that the court's charge on self-defense is subject to criticism. In concluding the charge on self-defense the court uses the following language, which is that excepted to: "* * * and in this connection you are instructed that unless you believe from the evidence beyond a reasonable doubt that the defendant did not act in his own self-defense as above defined, then you will give him the benefit of the doubt and acquit him." It occurs to us that this is either a charge shifting the reasonable doubt against appellant, or else it is absolutely unintelligible and confusing.
For the errors discussed and herein pointed out, the motion for rehearing is granted, and the judgment is reversed and the cause remanded.
Reversed and remanded.