¶1 (dissenting).
¶2 Exceptions were reserved to the charge of the court and requested instructions refused. Without details, the evidence substantially is that appellant and Otto Manus, on Christmas night, were at a dance in a house of prostitution. Florence Holloway, deceased, and other prostitutes had trouble with him in the house, of which appellant was ignorant. This resulted in Florence Holloway and the other prostitutes forcefully ejecting Manus. When they pushed him out of the door appellant was in the yard nearby and handed a pistol to Manus, remarking at the time “he was with him, shoot.” The deceased stepped on the foot of Manus in the dance hall. He expostulated with her about such treatment. She. at once went away, secured a long-bladed knife, returned and again stepped on his foot, remarking that she was in the habit of sticking her knife in a mother- every Christmas. He again expostulated, stating that if they did not let him alone he would burn the house. She and the other women at once “rushed” and ejected Manus from the house. Some of the witnesses say when they reached the door pushing him out they were “fussing and cursing a great deal,” and were more or less intoxicated. There is testimony that deceased, Florence Holloway, had the knife when they made their appearance at the door when Manus was being pushed out. It was then appellant was first aware of the existence of any trouble. He was not in the house and knew nothing of what occurred in there. Appellant was a warm personal friend of Manus. Without going into details on this phase of the case, appellant introduced evidence making the above testimony a little stronger and more acute in his favor as to the acts and conduct of the women in their assault on Manus. There was also evidence to the effect that Manus had been drinldng in the evening and had gone to his home in the country about five or six miles from the city of Waco. There is also evidence that he was not at the dance and did not participate in the difficulty; that he was at home at the time in the country. Evidence was also introduced that appellant was not present at the dance hall, proving for him a clear alibi. The evidence strongly controverts the fact that either was present at the time and place of the difficulty, or had any connection with it. The alibi fully separated them as well as proving their alibi. Some evidence is to the effect that Manus was known as “Yellow Boy.” The evidence also shows that “Yellow Boy” was not Manus, but a different man.
¶3 The court submitted the theory of alibi generally as to defendant. The substance of the charge is that if Manus, or “Yellow Boy” either, killed Florence Holloway, appellant would be guilty of murder. I am *423 of opinion this charge is misleading and so injuriously. The facts suggested manslaughter and self-defense, and under appropriate instructions submitting the issue of manslaughter the jury might have found him guilty only of that offense, but the court not only failed to give a charge applicable to manslaughter, but refused special instructions. Appellant’s connection with it was based on the fact that Manus was retreating and he assisted Manus by handing him a pistol to resist the attack made on him by these women,, some of the evidence showing.that one had a knife. If “Yellow Boy” and Manus are different parties, this would strengthen the alibi of Manus, and, therefore, of the defendant.. The State’s case depended upon the further fact that it was Manus and the defendant who were present, and not appellant and “Yellow Boy,” hut if it was “Yellow Boy” and not Manus, still having given alibi the charge should have submitted the law of alibi as to the various issues and facts bearing os. that question. These were matters of fact to be solved by the jury under appropriate instructions. The court could not assume facts to be true to the extent of blending them so as to submit only the identity of “Yellow Boy” and Manus as the same person. They doubtless were different persons. There is no connection proved or sought to be proved between appellant and the “Yellow Boy,” and the State’s case in this connection mainly - depends on the fact that it was “Yellow Boy” and not Manus who was pushed out of the door and to whom appellant handed the pistol. The jury may possibly, under appropriate instructions, have found “Yellow Boy” and Manus to be the same party, but the court could not so find on determining what the charge should he. The writer does not believe the facts would have justified the conclusion they were the same. Hor would the jury have so found under the facts. However that may he, wherever the evidence raises an issue favorable to the accused it must he given to the jury under appropriate instructions. Ho controverted fact should be assumed against the defendant by the charge of the court.
¶4 Error was assigned and special requested instructions refused in regard to alibi. The court did charge on alibi but limited it to the defendant without reference to Manus or “Yellow Boy,” except in a general way. As before stated, the court’s theory was that Manus and appellant were principals only on the issue of murder, and necessarily both were present and acting together at the time of the homicide. If Manus was not present, appellant and he could not have acted together. The question is strongly presented by evidence that neither was present hut both absent. If Manus was not present but absent in the country, the theory that appellant acted with him would fail. If the theory on one side is principals or conspiracy and the other is alibi as to either party, or both, then that theory should be given in charge, and if alibi is presented as to both parties as to the supposed conspiracy or alleged acts of the principals, that should have been given in charge and presented favorably to the defendant, especially as the law of principals and conspiracy is by the charge really made the basis of con *424 viction. The court having given a charge on alibi, should have given it as called for by the evidence. Appellant was entitled to it under the case as presented. If either party was absent, there could be no acting together. The law of principals or conspiracy could not apply in that event. The court did not so instruct the jury. Having given the law of principals, the converse of the proposition was demanded under ■ the facts.
¶5 There is another question I think reversible. The court submitted only murder, and only on the theory of principals and conspiracy. Appellant excepted to the charge for failing to submit the issue of manslaughter, and presented on that subject a special instruction, which the court refused. I suppose the court did this on the theory that appellant was in the yard at the time his friend was backed out or pushed back or ejected from the house, and that no adequate cause existed as to him. There would be no question under the facts that if Manus was on trial the issue of manslaughter would be a serious one, and the court would be compelled to submit that phase of the law. It is a rule of law, and part of the jurisprudence of this State, that every issue favorable to defendant must be submitted in the charge. See Branch’s Annotated Penal Code, section 2045, for a great number .of collated cases. In Biley v. State, 81 S. W. Rep., 711, it was stated, in effect, if the evidence raises the theory that the deceased had ceased the attack, or if deceased’s weapon was not one that by the manner and use of it it was calculated to kill or inflict serious bodily injury, and the defendant’s mind became excited beyond cool reflection,- the issue of manslaughter is raised. This would apply to Manus. Manus • in fact killed Florence Holloway. The defendant did not. The evidence for the State only shows that appellant furnished Manus a pistol with which he did the killing. It shows the parties came upon him suddenly without any knowledge or information on his part of the difficulty, which arose in the house which led to the ejection of Manus from the house. So appellant would only be responsible for the case and his connection with it as it first presented itself to him and upon which he acted. Deceased had a knife in the house and threatened to stick it in Manus when she and the other women began pushing him towards the door and forcing him out of the house. It was a sudden difficulty in the house not provoked by Manus but provoked and brought on without any necessity on the part of the women. Of all this appellant was ignorant, and he must be judged by what he saw of the difficulty at the time he furnished the pistol. They had pushed Manus out of the door and some of the testimony shows deceased still had the knife with which she began the difficulty in the room. But be that as it may, under the Biley case, supra, Manus would be entitled to a charge on manslaughter. Stepping on his foot twice, once after securing a long-bladed knife, and then forcefully ejecting him from the house under the detailed circumstances would have required the court to submit the issue of. manslaughter as to Manus had he been on trial. Florence Holloway, among other things, *425 remarked to him at the time she stepped on his foot and had the knife, using the most vulgar and obscene language, which is not here repeated, that she was in the habit every Christmas of sticking a knife in some mother-. This was after she returned with the knife, and it was at this time she stepped on his foot the second time. It was an unnecessary and unprovoked assault on her part, which, with the other facts, would constitute as to him adequate cause. See Harrison v. State, 47 Texas Crim. Rep., 393; Casey v. State, 50 Texas Crim. Rep., 392; Moore v. State, 26 Texas Crim. App., 322; Beckham v. State, 69 S. W. Rep., 534. It is further laid down by numerous authorities, that if the defendant aids and abets another in a killing, and the killing on the part of the slayer would be manslaughter, the issue of manslaughter is in the case as to defendant. Moffatt v. State, 35 Texas Crim. Rep., 257; Harrison v. State, 47 Texas Crim. Rep., 393; Williams v. State, 40 Texas Crim. Rep., 565. Again, it is asserted as a sound legal proposition, if defendant interferes for the protection of another, where the deceased was the aggressor, and such interference was not in pursuance of a previous^ formed design, and defendant used more force than was reasonably necessary for the protection of the assaulted party and killed the deceased, manslaughter is an issue. Moffatt v. State, supra. The number of cases might be extended, hut these are sufficient to show the line of jurisprudence in this State. In this connection it might be well enough to cite the Lewis case in 48 Texas Crim. Rep., 614, in regard to alibi and manslaughter and their relation to each other under the given state of facts. In substance, that case holds, the opinion being by Judge Brooks, on a trial for. murder where the evidence suggests the issue of alibi, upon which the court charged, and also that defendant had the right to believe that various parties were attempting to harm or kill him at the time of the homicide, which was calculated to terrorize or anger him and thus render his mind incapable of cool reflection, and that under these circumstances he shot and killed the deceased, the court should have charged on manslaughter. So here the facts show that manslaughter was in the case as to Manus, and the defendant legally having a right to act in behalf of his friend, viewed from the standpoint of manslaughter, the alibi question would not relieve the court of charging-on manslaughter. In Bonner v. State, 29 Texas Crim. App., 223, it was held a party acting in behalf of another is entitled to the same justification or mitigation as the other. The court in the instant case charged on self-defense under the facts stated. For much stronger reasons the charge should have submitted the issue of manslaughter. There is no evidence that defendant brought on the difficulty to kill deceased, or even that Manus did. In fact, the evidence discloses that Manus did not, and that appellant was absent and knew nothing of the origin of the difficulty. Even if either or both brought it on and the killing occurred to prevent serious bodily injury, it would he no higher offense than manslaughter, unless it be shown that the killing was by reason of Manus and the defendant, either or both, bringing *426 on the difficulty for the purpose of killing or inflicting serious bodily injury. If the purpose was less than killing or serious bodily injury, the killing would be no higher than manslaughter by all the authorities and by the statute. These questions are well settled, and the court’s charge was in error along these lines. The case should be viewed from the standpoint of the defendant as he saw and understood it at the time he came upon the parties engaged in the difficulty or connected himself with it. This was settled by one of the strongest written opinions to be found in our decisions by Judge Clark in Guffey v. State, 8 Texas Crim. App., 187. See also 12 Texas Crim. App., 115; 19 Texas Crim. App., 195; 29 Texas Crim. App., 240; 36 Texas Crim. Rep., 309.
¶6 Again, the court refused a continuance. This is properly presented for revision, and in the opinion of the writer ought to have been granted. This much might be said in regard to this continuance: The testimony was material from more than one standpoint, and, second, the witness had testified on a former trial, and the testimony was known to the court and to the attorneys in the case. To meet this the court qualifies the bill by stating that the prosecution offered the defendant the privilege of introducing before the jury what the witness had previously testified, but this does not meet the question. The statute requires that in order to defeat the application any admission of the absent testimony on the part of the State must be accompanied by the further admission or agreement that the testimony is true, and this was not so done in this case.
¶7 Again, the evidence to prove the good reputation of Manus should have been admitted under the Heitman case, recently decided. I do not care to discuss that question. If Manus was a man of good reputation for peace and quietude and orderly conduct and a law-abiding man, it would tend to induce appellant when he first saw the difficulty to believe that Manus was not in the wrong, but the other people were, and especially so in the light of the fact that several women were assaulting him. ' ¿
¶8 These are some of the reasons why I believe the- majority of this court was in error in affirming the judgment. I, therefore, respectfully enter my protest to such affirmance.