(Court of Criminal Appeals of Texas. Oct. 15, (Court of Criminal Appeals of Texas. June 18, 1913. On Motion for Rehearing, Oct. 29, 1913.)

We have carefully examined this complaint, in connection with the statute, and in our opinion neither count thereof is sufficient under any or all of the definitions of our Code to charge an offense. The county HARPER, J. Appellant was prosecuted, court therefore erred in not sustaining said charged with murder, and when tried convictmotions and holding said complaint insuffi-ed of manslaughter, and his punishment ascient. sessed at two years' confinement in the penitentiary.

were fired by those inside the lot-the Coulters. The appellant's contention is that they had no thought of going towards deceased but were going to the field to work; that Raymond fired two shots at the fowls, when deceased began to curse, drew a gun, and fired at Hinson Coulter and his son Raymond. Further contending that appellant had no pistol, did not shoot, and was in a position where he could not see the difficulty.

[1] There are three bills of exception in the record to the introduction of certain testimony. As to the first two, the court states, in approving them, that no objection was made to the testimony when elicited and no motion made to exclude it. As to the third, the court states the testimony was elicited by defendant. Under such circumstances, of course, these bills present no error.

were brothers-in-law. That deceased rented towards the gin; and that deceased fired no four or five acres of land from Hinson shot but that all five of the shots then fired Coulter and erected a mill thereon. The pond, from which the water for the mill was secured, was inside of Hinson Coulter's pasture; an underground pipe making the connection. It appears that deceased cut a gate in the fence of Hinson Coulter's pasture, and when Coulter learned of it he nailed it up and then went to the mill and so informed deceased. Words ensued; the exact language used being conflicting. Anyway Coulter went to his home some 400 yards distant. It appears after he left deceased fired his pistol three times but not at any person. Deceased and one of his employés, McBride, went near the house of Coulter after an oil pump, and while they were there a pistol was fired twice in the lot of Mr. Coulter. The testimony of the state would then show a third shot was fired from the inside of the lot, knocking up the dirt near the feet of deceased; that he then cursed those in the lot for G-d d-n sons of b-s and dared them to come out and fight it out, at this time drawing his pistol, when the state's witnesses say two more shots were fired from the lot and deceased fell with a bullet in his brain. The state's witnesses testify positively that deceased fired no shot and did not draw any weapon until after the third shot was fired. After the shooting was over a pistol was taken from Raymond Coulter, with only one empty shell, showing it to have been fired once, and all the witnesses testify that he fired at least once, and the defendant's witnesses would have that one inflicting the fatal wound. Two of the state's witnesses, Judge Green and John White, state that after the shooting appellant, Henry Coulter, came up to the fence with a pistol in his hand and made a remark to deceased's son, Robert.

As appellant was found guilty of only manslaughter, it is only necessary to discuss the question: Did the court properly present that issue and the issue of self-defense? We think the court correctly applied the law of principals to the case, and the criticisms of that portion of the charge are without merit. However, the court instructed the jury: "If from the evidence you believe beyond a reasonable doubt that Raymond Coulter killed A. C. Lynch, but you further believe, or if you have a reasonable doubt as to whether or not such is a fact, that at the time of so doing, and before Raymond Coulter made any effort to shoot A. C. Lynch, if he did so make any effort, A. C. Lynch had made, or was about to make, an attack on Raymond Coulter as viewed from his standpoint, which from the manner and character of it caused Raymond Coulter to have a reasonable expectation or fear of death or The defendant's witnesses would show bodily injury, and that, acting under such that, after the difficulty at the gin, Hinson reasonable expectation or fear of death or Coulter came to the house, and then he, his bodily injury, Raymond Coulter killed A. C. three sons, Henry, Raymond, and Amos, and Lynch, then you will acquit the defendant, Elisha War started to the field to work. Henry Coulter; and if A. C. Lynch was They say only one of them had a pistol; armed and was making, or was about to Raymond Coulter had a pistol; that when make, an attack on Raymond Coulter, and he got in the lot he fired twice at some Raymond Coulter believed at the time he guineas; that he then reloaded his pistol. shot (if he did shoot) that A. C. Lynch was There is no contention that those two shots about to attack him, and if the weapon used were fired at deceased. The defendant's wit- by Lynch, and the manner of its use, was nesses say that, when the two shots were such as was reasonably calculated to profired in the lot, deceased began to curse, duce death or serious bodily harm, then drew his pistol, and fired, shooting between the law presumes he intended to murder or Hinson Coulter and his son Raymond; that inflict bodily injury upon Raymond Coulter." Hinson Coulter jumped behind the barn, and Thus it is seen the court instructed the Raymond Coulter behind a tree; that Ray-jury and applied the law solely as to what mond Coulter and deceased both fired then they thought Raymond Coulter believed and about the same time and deceased fell. When deceased's pistol was secured, it would indicate two shots had been fired out.

This shows the contention of the parties, the state's being that after the trouble at the gin Hinson Coulter had said he would return; that he and all his boys did go

how it appeared to him. Appellant's acts and conduct could not and should not be judged by the belief of and appearances to Raymond Coulter; but if it reasonably appeared to him (appellant) that deceased was about to kill Raymond Coulter, or his father, Hinson Coulter, and under such circumstanc

counsel are mistaken in asserting that the evidence, and all the evidence, shows that deceased fired the first shot (if he shot) at Raymond Coulter and no other person.

The lot fence and the garden fence was all it not so appear to him? The state's able one string. It joins and one string makes both strings of the lot and the garden. I don't know whether it was before Raymond --it must have been just as he shot the last time I heard somebody cursing in front of the lot towards the big road. I turned right around and stepped to the wagon tongue, and Raymond was coming up there, and we were nearly side by side, and I saw Arch, and just as we got in full view of him he shot, and it knocked up the dust between mine and Raymond's feet, and I just ducked back."

Henry Coulter, appellant, testified, he had no pistol and did not shoot. He testified about Raymond shooting at the guineas; he then heard Mr. Lynch cursing and Raymond went in that direction; that Pa (Hinson Coulter) went up to the wagon with Raymond, and his father ducked when Lynch shot in the lot the first shot.

Mrs. Evy War testified about hearing the shots in the back of the lot and deceased, her uncle Arch, then began cursing, saying: "He just grabbed his hat and popped it against his leg and said, 'Come on out here, you G-d d— -n cowardly sons of b- -s.

I am out here waiting for you. I am going to kill the last Gd d-n one of you.' He just kept swearing and cursing, and I said to Mama I would make him go on to the mill and behave himself, and I holloed and told Uncle Arch to go on back to the mill and behave himself, and he said, 'You needn't say a Gd d- -n word;' and about that time he pulled his pistol and shot. He shot right straight in the lot, looked to me like, under the shed."

Mrs. Coulter testified to her husband and

[3] Again counsel for the state insist we erred in holding that the charge on selfdefense was erroneous in limiting appellant's right to act, if it reasonably appeared to Raymond Coulter that deceased was about to shoot him (Raymond Coulter), etc. Appellant cannot be bound by the way the matter appeared to Raymond Coulter. The charge should have instructed the jury that, if it reasonably appeared to him (Henry Coulter) that deceased was about to or had made an attack on Raymond Coulter, his father, etc., he would have the right. Every person is to be judged as it may appear to him and not as it may appear to some other person. If he acted with Raymond Coulter in the commission of an offense, of course he would be bound by the act of Raymond Coulter, but in this case it was an issue as to whether he did anything; but if he did shoot, but at the time reasonably appeared to him that deceased was about to slay his father or brother, he would be guilty of no offense, although his brother might not have so viewed the matter. If a conspiracy was shown beyond doubt, the rule might be different, but in this case appellant earnestly insists he was not acting with Raymond Coulter, and there is testimony supporting him, making that an issue in the case.

The motion for rehearing is overruled.

WILSON v. STATE.

the others being in the lot, and that Raymond (Court of Criminal Appeals of Texas. Oct. 15,

fired at the guineas, when Mr. Lynch com-
menced cursing and went that way. "He
just reached up and grabbed ahold of his
hat and slapped it against his hip that way
(indicating) and holloed and told them they
needn't be throwing their dares, the ‘G―d
d-n cowardly sons of b-s; come out
there; he was out there ready for them and
waiting for them.' And I ran out to the
gate and holloed and said, 'Arch, my folks
ain't bothering you; they are going to the
field to work; you go on back to the mill.'
And he said that I needn't say a word to
him, he aimed to kill every Gd d-
one of them when they come on through that
He (Lynch) shot right towards the

lot.

lot."

-n

1913.)

1. HOMICIDE (§ 43*)-MANSLAUGHTER-ELE

MENTS.

Under the direct provision of the statute, voluntary homicide to manslaughter there must as well as in the absence of statute, to reduce exist "sudden passion" in accused, which must have arisen from an "adequate cause."

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 67; Dec. Dig. § 43.*]

2. HOMICIDE (§ 340*) - APPEAL - HARMLESS ERROR-INSTRUCTIONS.

The submission of manslaughter, when that was not in the case, was favorable to the accused, so that he cannot complain thereof on appeal.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.*] 3. HOMICIDE ( 45*)-MANSLAUGHTER—Ade

QUATE CAUSE.

Under Pen. Code 1911, art. 1131, providing that insulting words or gestures, or an assault and battery so slight as to show no intention to inflict injury, unaccompanied by violence, are not adequate cause to reduce homicide to manslaughter, the fact that decedent called accused a son of a bitch and struck at him with his open hand, without hitting him, was not adequate cause.

Now if, as the state contends, appellant knew of the difficulty between deceased and his father and did not know of any trouble between Raymond and deceased when this shot was fired, would not the natural and only inference he could draw be that deceased was shooting at his father, the person with whom he had the difficulty? Would

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 69; Dec. Dig. § 45.*]

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 62-64; Dec. Dig. § 40.*] 5. CRIMINAL LAW (§ 805*)-INSTRUCTIONS. A contention, that an instruction that, under the hypothesized facts, the jury "may" find accused guilty of manslaughter, was erroneous for using the quoted word instead of "must," was hypercritical.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1958, 1989; Dec. Dig. § 805.*]

(§ 300*) INSTRUCTIONS

4. HOMICIDE (8 40*)-ISSUES-COOLING TIME. | stance and effect of this was, as stated by Where there was but one difficulty, which appellant alone, that deceased asked appelwas immediately and continuously prosecuted until the killing, within a very short time aft- lant if he had called him a son of a bitch. er the difficulty had begun, the question of cool- Appellant denied he had and asked him who ing time was not in the case. told him. Deceased said Lexie Ditto told him. Whereupon appellant said Ditto lied, or was a damn liar; that then deceased said to him, "You are a damn lying son of a bitch," and deceased then slapped his left hand on his pocket and struck at appellant with his right. Appellant jumped back and caught at deceased's arm or shoulder. Neither struck the other; that thereupon deceased slapped his horse with his lines and started off in a rapid trot. Appellant took after deceased and ran down the street behind deceased's buggy for some distance. The deceased drove rapidly some 75 yards from where the altercation had first occurred, stopping in front of Barbee's store. He immediately got out of his buggy and walked briskly into Barbee's store, which is about 90 feet long, to about the middle of the store, looking for something. One of the clerks asked him what he wanted, and he said an ax handle. The clerk indicated to him where the ax handles were, and he thereupon at once took one and walked back out of the front of Barbee's store onto the sidewalk with it. When appellant saw he

6. HOMICIDE
THREATS.
Where the only threats made, if any, were
made during the progress of the difficulty and
in accused's presence and directly to him, it
was not necessary to charge on the law of
threats.

[Ed. Note. For other cases, see Homicide, Cent. Dig. 88 614, 616-620, 622-630; Dec. Dig. § 300.*]

7. HOMICIDE (§ 254*)-SUFFICIENCY OF EVI

DENCE.

Evidence held to sustain a conviction for second degree murder.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 533-538; Dec. Dig. § 254.*]

Appeal from District Court, Concho County; Jno. W. Goodwin, Judge.

Roy Wilson was convicted of second degree could not overtake deceased when going murder, and appeals. Affirmed.

itentiary.

For some time prior to July 20, 1912, appellant, a young man then 23 years old, and the deceased, Roy Stuart, a boy or young man, then 20 years old, lived in the same community and had been friends. The deceased was entirely blind in his right eye, and appellant knew this. On July 20, 1912, they both went to the town of Paint Rock, in Concho county. The deceased, while there, went into a store and made some purchases. Appellant later came in the same store and met him, when they spoke and had some incidental conversation. They at once separated.

Appellant and his brother Harvey and a third party, shortly afterwards, were sitting on a bench on the outer edge of the sidewalk in front of the market. The de ceased, from the north, came driving down the street of said town, going south, this street running north and south, and, when he got opposite appellant some 15 or 20 feet from him, stopped his buggy and asked appellant to come out, he wanted to see him. Appellant went to the buggy, where they had some conversation and altercation. The sub

away from him in his buggy, he ran onto the sidewalk on which the stores fronted and continued down it until he got in front he met his father. His brother Harvey, who of Ratchford's store next to Barbee's, where was sitting with him when deceased first called him out to his buggy when the altercation occurred, immediately, in a hurry, followed his brother, appellant. Appellant saw deceased go into Barbee's store and testified that he saw him coming out of that store with the ax handle, when appellant, his father, and brother immediately went into Ratchford's store, passed through it into the rear-it was also 90 feet long-without stopping until they got back of the stores, when as one witness testified, in substance, the three halted and huddled together for a moment, when the father passed something to appellant. The three then immediately continued, went into the back of Barbee's store, walked from the back to the front, the three abreast, the father in the center, appellant to his right, and the brother to his left. Another witness testified that when they reached the front door of Barbee's store he was standing in it to one side, and that appellant's father told him to look out, or get out of the way, and that he immediately did so. When they got to the door, without stopping, appellant walked out some 8 or 10 feet on the sidewalk in front of the door, the father and brother halting back nearer to the door, when appellant, facing north, made one or two steps and proceeded immediately to be