Jaynes v. State

<p>1. —Murder—Manslaughter—Charge of Court—Sudden Passion—Statutes Construed.</p> <p>In accordance with the rule laid down by the statutes and decisions, two clear requisites are necessary to constitute manslaughter: a First, sudden passion, and second, that sudden passion must arise from an adequate cause, and in order to reduce murder in the second degree to manslaughter, the homicide must be committed under the immediate influence of sudden passion arising from an adequate cause. Following Puryear v. State, 56 Texas Grim. Rep., 231.</p> <p>2. —Same—Statutes—Decisions.</p> <p>Although there may be some more or less loose expression in some of the decisions which may, perhaps, sustain appellant’s contention as to adequate cause, this court will not follow them on this subject where they conflict with the express and specific statement of the statute as to what it takes to constitute manslaughter. Following Deeper v. State, 29 Texas Grim. App., 63.</p> <p>3. —Same—Manslaughter—Charge of Court—Sudden Passion.</p> <p>Where, upon trial of murder, defendant’s evidence showed insulting words and conduct by the deceased towards defendant’s daughter, there was no error in the court’s charge in giving the very definition of manslaughter as it is contained in Article 1128, Revised Penal Code, and instructing the jury among other things that manslaughter is voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause, etc., and the cbntention of appellant that because of the use in the court’s charge of the word “sudden” is reversible error is untenable, and there was no error.</p> <p>4. —Same—Charge of Court—Manslaughter.</p> <p>Where, upon trial of murder, the defendant claimed among his defenses insulting words and conduct towards a female relative, and the evidence showed that such conduct by the deceased was communicated to the defendant about an hour before the killing which took place upon the first meeting of the parties, the jury could not have been misled by the court’s charge in using the word, “sudden passion” in defining adequate cause. Davidson, Presiding Judge, dissenting.</p> <p>5. —Same—Charge of Court—Time of Provocation.</p> <p>Where, upon trial of murder, defendant interposed as a defense the issue of insulting conduct to a female relative, there was no error in the court’s charge under the facts, which disclosed a former provocation, that the provocation must have occurred at the time of the homicide, the evidence showing that the communication of such insulting conduct occurred about an hour before the killing on the first meeting of the parties, and the former provocation long before. Davidson, Presiding Judge, dissenting.</p> <p>6. —Same—Statutes Construed—Former Provocation—Adequate Cause.</p> <p>The first subdivision of article 1129, Revised Penal Code, which defines what is meant by the expression, “under the immediate influence of sudden passion,” and 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 is still the law, and the court must follow same even though there may be some loose or general contrary expressions in former decisions of this court on the. subject. Distinguishing Akin v. State, 56 Texas Grim. Rep., 324; Tucker v. State, 50 S. W. Rep., 711. Davidson, Presiding Judge, dissenting.</p> <p>7. —Same—Charge of Court—New Provocation.</p> <p>Where, upon trial of murder, the defendant interposed the issue of insulting conduct to a female relative, and also claimed a new provocation at the very time of the killing, but it appeared from the evidence that the alleged verbal insult by deceased was directed towards defendant, there was no error in the court’s failure to charge on such alleged new provocation; ■ besides, the charge of the court in general terms embraced this alleged insult, in instructing the jury that they must consider all the facts and circumstances in evidence.</p> <p>8. —Same—Charge of Court—Words and Phrases—Invited Error.</p> <p>Where the court’s charge used the words, “honestly believe,” in his charge on manslaughter, but did not use said words in that clause of the charge wherein the question was submitted to the jury for its finding, and it also appeared that the defendant invited said error, if error, there was no reversible error.</p> <p>9. —Same—Charge of Court—Manslaughter—Self-Defense.</p> <p>Where, upon trial of murder, the defendant complained that the court’s charge did not separately and distinctly submit adequate cause, as to the alleged hostile demonstration by the deceased at the time of the killing, which showed that deceased put his band in his bosom apparently to draw a pistol, when' defendant ' fired. Held, that the same did not raise such issue, and it was not necessary to submit the same in the court’s charge on manslaughter, and the defendant could only avail himself thereof on the issue of self-defense, which the court properly submitted.</p> <p>10. —Same—Charge of Court—Manslaughter—Self-Defense.</p> <p>Where, upon trial of murder, the issues of manslaughter and self-defense were raised by the evidence and properly submitted by the court, there was no error in the court’s charge on manslaughter to say that if defendant did not act in defense of himself against an unlawful attack, etc., to find the defendant guilty of manslaughter.</p> <p>11. —Same—Charge of Court—Self-Defense—Actual Attack.</p> <p>Where, upon trial of murder, the evidence for the defense showed that deceased put his hand in his bosom as though he was going to draw his pistol just before defendant fired and killed him, there was no error in the court’s charge to instruct the jury to acquit defendant if they believed that defendant killed deceased at the time deceased had made or was making an attack on him which caused him to have reasonable expectation or fear of death or serious bodily injury, and that deceased was armed at the time and defendant so honestly believed, and there was no error in the court’s failure to charge on apparent danger. Davidson, Presiding Judge, dissenting.</p> <p>12. —Same—Objections to Charge of Court—Practice on Appeal.</p> <p>While article 723, Code Criminal Procedure, does not change the rule that objections to a charge of the court may be máde in the motion for new trial, yet this court has at no time looked with so much favor upon objections to a charge when first presented in the motion for new trial that it has when exceptions' were made to the charge at the time it was given, or special charges were requested; and where no error appears of record which is calculated to injure the rights of the defendant, and it appears from the record that the first objection to the court’s charge is made in a motion for new trial, there is no reversible error. Davidson, Presiding Judge, dissenting.</p> <p>13. —Same—Actual and Apparent Danger.</p> <p>Where, upon trial of murder, the evidence showed on the part of the defense that at the time defendant shot deceased the latter put his hand in his bosom as though he was going to draw his pistol, there was no error in the court’s charge that if the jury believed that at the time defendant killed deceased thj latter had made or was making an attack on the former, to acquit, and there was no error in the court’s failure to charge on apparent danger, as the court’s charge was more favorable to the defendant under the facts than the law required; especially, where no charge was requested covering any of the points complained of in defendant’s motion for new trial.</p> <p>14. —Same—Argument of Counsel.</p> <p>Where, upon trial of murder, the argument of the district attorney to which the defendant objected, was induced by the defendant’s argument which the State’s counsel .answered, there was no error.</p> <p>15. ‘—Same—Evidence—Contradicting Witness—Rebuttal.</p> <p>Where, upon trial of murder, the defendant claimed that deceased had enticed defendant’s daughter from the latter’s home for immoral purposes and introduced witnesses tending to show this, there was no error in permitting the State" in rebuttal to show that the defendant’s claim was not well founded, and that other men had enticed away defendant’s daughter and were seen with her during the time defendant claimed she was in company of deceased.</p> <p>16. —Same—Charge of Court—Practice on Appeal—Precedent.</p> <p>In passing on the charge of the court in any case the whole of it must be considered, and it must also be considered in connection with the testimony, and this rule applies in determining the application of a previous decision of the court which is cited to sustain a given proposition, besides, statutory provisions can not be changed by the decision of any case.</p> <p>17. —Same—Manslaughter—Statutes Construed.</p> <p>Article 1133, Revised Penal Code, does not change or repeal articles 1128, 1129, and 1132 of the Revised Penal Code, and does not do away with sudden passion as one of the necessary elements of manslaughter when the killing is claimed to have occurred because of the insulting words or conduct of the person killed towards a female relation of the party killing, nor does it change the definition of what is meant by “under the immediate influence of sudden passion,” and that the provocation must arise at the time of the commission of the offense and is not the result of a former provocation.</p> <p>18. —Same—Statutes Construed—Manslaughter.</p> <p>The whole of the specific language used in article 1133, Revised Penal Code, must’ be taken into consideration and when doing so in connection with the whole statute on manslaughter it repels the idea that the slayer can nurse his wrath from year to year or month to month, or week to week, or even day to day, and then claim that because he did not meet the insulting party after such lapse of time and then killed him he is guilty of manslaughter only, but the killing must take place within some reasonably short time or immediately after the insulting words or conduct are communicated to the slayer.</p> <p>19. —Same1—Case Stated—Manslaughter—Insulting Conduct to Female Relative—Sildden Passion.</p> <p>Where, upon trial of murder, the evidence showed that the defendant acted within such a short period of time, after being informed of the claimed insulting conduct, as to show that if the adequate cause was what aroused his passion it was within so short a time after he heard it as to make such a passion sudden and that it was aroused at the time of the commission of the offense, there was no error in the court’s charge that the passion must be sudden and must not have been aroused by a former provocation; there being evidence of a former provocation. Davidson, Presiding Judge, dissenting.</p>