1. Argument of Counsel — Duty of Party Objecting to. — On a trial for murder, where it had been proved without objection on the part of defendant that he was in the habit of cursing and abusing his wife, and had slapped her in the mouth, and that they had been separated for several months, and the district attorney in his closing argument said, "that defendant ran his wife away from home and slapped her in the mouth;" held, that no injury was shown, and that even if the declaration had been shown to be objectionable and injurious, the defendant, to avail himself of the objection, should have requested instructions to the jury not to regard the remark — which was not done.
2. Charge of the Court — A General Exception to, Insufficient. — It has been repeatedly held by this court, that a general exception to the charge of the court, specifying no particular errors, is entitled to no consideration, and will not be regarded by this court.
3. Manslaughter. — To constitute manslaughter, the act must be caused directly by the passion arising out of the present provocation, and the provocation must be one given by the party killed, and not one given by some other person. Penal Code. art. 594.
4. Practice — A Charge on a Less Degree only Necessary, when. It is not every possible phase of a case that may be suggested by any testimony in the cause that requires a charge of the court. The correct rule is announced in Davis' case. 28 Texas Court of Appeals 560[ 28 Tex. Crim. 560]. Unless the evidence tending to present a less degree of an offense be so pertinent and forcible that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, a failure of the court to charge thereon would not be ground for reversal in the absence of exceptions.
5. Murder — Self-Defense — Manslaughter. — See facts stated which, in the opinion of the majority of the court, presented but two issues — on behalf of the State, murder; on behalf of the defendant, self-defense — and upon which the issue of manslaughter not having been legitimately raised, objections to the charge of the court in that particular, to the effect that it was stereotyped and insufficient in its application to the facts, will not be considered, the charge being amply sufficient upon the other issues stated. Hurt, Presiding Judge, dissents, and "refers to the record in support of his views."
SIMKINS, JUDGE.
Defendant was convicted of murder in the second degree and his punishment assessed at seven years, and upon an appeal to this court the judgment was affirmed in an unwritten opinion at the last Austin Term, and is before us on a rehearing. It is only necessary to consider the two questions discussed in the motion for a rehearing.
1. The remarks of the district attorney in his closing speech are alleged to be improper and necessarily injurious to the defendant. The remarks were: "That defendant ran his wife away from home, and slapped her in the mouth."
We do not think the remarks could have injured the defendant. It had gone to the jury, without objection, that defendant was charged by his wife, that he was in the habit of cursing and abusing her, and had slapped her in the mouth. That they had been separated since October before. That defendant had denied the charge of abuse of his wife, and that his wife reiterated the charge before witnesses. As stated by the court, the defendant was urging upon the jury that the witness Ford was the cause of the separation, and the district attorney was arguing it was defendant's own conduct that led to the separation. We can not say the argument was, under the circumstances, improper; and if it was, the defendant, to avail himself of the objection, should have requested instructions to the jury not to regard the remarks.
2. The principal ground urged for a rehearing is on the failure of the court to apply the charge of manslaughter. The statutory charge was given, but the complaint is, it was a stereotyped charge, when it should have adjusted itself to the facts. There was a general exception taken to the charge, but such an exception, under the repeated decisions of this court, can not be regarded. Williams' case, 22 Texas Ct. App. 497[ 22 Tex. Crim. 497].
In the view we take of the case, it is not necessary to consider whether the law on manslaughter was sufficiently charged or not. We do not think there wits sufficient evidence requiring such a charge. But as presented by the record, it was either self-defense or murder, and the case was fully covered by the charge of the court.
There are two theories presented by the evidence — the State's and the defendant's. The defendant himself took the stand and presented his defense. He had been forcibly thrust out of his father-in-law's (deceased's) house, and from the presence of his wife and her mother and sisters, by the man he hated, one Ford. As he was put off the front gallery he turned and snapped his pistol at Ford, who then fled back into the house and called for a gun. Ford returned at once with the gun, and snapped at defendant, who was backing to the gate. Suddenly he received a heavy blow, and at once was seized from behind. Defendant put his pistol over his shoulder and fired, but felt himself seized tighter; he immediately put his pistol under his left arm and fired on the person holding him, who then loosed him and fell. Defendant said: "I then saw it was Deshazo. About the time of my first shot Ford shot at me from the gallery." "I had nothing in the world against Deshazo; we had been friendly all the time." "I would have killed my own brother under the same circumstances, for I was much excited, and believed that Deshazo was helping Ford, who was standing in front of me on the gallery with a gun, trying to shoot me."
Here we have the case from the standpoint of the defendant, and his testimony is strongly corroborated by his brother, who was present and witnessed the whole transaction, and the witness York, who testified to a small cut above the right ear of the defendant next morning, and the witnesses Thomas and West, who swore to the dying statement of Deshazo, who had admitted he had taken hold of defendant and defendant probably thought he was assisting Ford. If this testimony be true, it was simply self-defense; and the charge of the court is clearly sufficient on this point.
After charging that defendant had a right to defend himself against the unlawful and violent attack of Deshazo, if any was made, the court says: "Or if Ford was making a violent attack upon defendant, or was about to do so, and Deshazo was acting with him, or if appearances were such as reasonably to induce defendant to believe so, and he did believe Deshazo was a party to the attack then made, or about to be made on him by Ford, and defendant killed the deceased to defend himself, then you should acquit, though deceased may not have used, or attempted to use, any violence upon him; and in passing on these questions of danger, or apparent danger, it is to be viewed from defendant's standpoint."
The charge put Deshazo and Ford in the same category. If the defendant reasonably believed they were acting together, defendant had the right to kill Deshazo, and it would be in self-defense. It can not be claimed that if defendant did not believe that Deshazo was trying to assist Ford, when he took hold or touched defendant, that defendant would only be guilty of manslaughter in killing him.
In Weathersby's case, 29 Texas Court of Appeals 278[ 29 Tex. Crim. 278], where the party killed had given no provocation, but was merely seeking to prevent the killing of another, this court says. "The issue of manslaughter is not presented. The act must be caused directly by the passion arising out of the present provocation, and the provocation must be one given by the party killed, and not one given by some other person. Penal Code, 593, 594. It is not every possible phase of the case that may be suggested by any testimony in the cause that requires a charge of the court. The rule is settled in this court by the Davis case, 28 Texas Court of Appeals 560[ 28 Tex. Crim. 560]; and it is thus stated:
"Unless the evidence tending to present a less degree of an offense be so pertinent and forcible, that it might reasonably be supposed that the jury could be influenced by it in arriving at their verdict, a failure of the court to charge thereon would not be ground for reversal in the absence of exceptions."
As presented by the State, the evidence proved murder. It was testified to by an eye-witness that defendant was standing near the porch, with his pistol drawn. Mr. Deshazo, who had been out at the front gate, came up behind defendant and touched his back, and defendant immediately turned and shot him through the body. Deshazo fell near the porch. Defendant went to the south part of the house, and then returned to where deceased was lying, put his pistol in a few feet of his head, and shot him in the throat.
Deshazo stated to the State's witnesses he had done nothing to induce defendant to kill him; that when defendant snapped his pistol at Ford, he went to tell him what it would lead to, when defendant shot him in the stomach; that he then went off, and in a moment or two returned and would have shot him in the face, but he turned his head and Jim shot him in the throat. Deshazo was found at the edge of the porch.
The jury evidently repudiated the defense that Deshazo had struck defendant in the head with a club, or had seized him around the waist and arms, and he had shot to free and defend himself. What then remains but that the defendant, touched by Deshazo, had whirled and shot him in the stomach, and then had fired his pistol into the face of the deceased, while he lay on the ground, helpless and dying, at the steps of his own house?
The moderate punishment given in this case, shows that the jury weighed and duly considered all the circumstances of the case. The separation of defendant and his wife, his effort to induce her to return home to her children, the appearance of the intermeddler, Ford, upon the scene, the understanding existing apparently between his wife, her mother, and Ford, his wife's charge of ill treatment, Ford's seizing him in their presence and forcibly ejecting him from the house, the knowledge that the separation was now final — all these facts had rendered defendant reckless and desperate, inducing him not only to try and kill Ford and his wife, but visit his wrath even upon her father. We think the defendant has no right to complain of the verdict. We find no reversible error, and the motion for a rehearing is overruled.
Motion overruled.
Hurt, P. J., dissents, and refers to the record in support of his views.