Cochran v. State

• Decision Date: 08 March 1890
• Citation: 13 S.W. 651
• Parties: COCHRAN <I>v.</I> STATE.
• Court: Texas Court of Appeals

13 S.W. 651

COCHRAN

v. STATE.

Court of Appeals of Texas.

March 8, 1890.

Appeal from district court, Johnson county; J. M. HALL, Judge.

Poindexter & Padelford, for appellant. W. L. Davidson, Asst. Atty. Gen., for the State.

WHITE, P. J.

This appeal is from a conviction for murder of the second degree. The main errors complained of are the instructions given by the court in the charge upon manslaughter and self-defense. The facts in the case clearly raised both of these issues, and demanded of the court a plain and pertinent exposition of the law applicable to the facts which presented them. Deceased and defendant were strangers, who had never seen each other before the fatal meeting. Defendant came into the room where deceased and another were engaged in a game of billiards. As he entered the door some one pulled off his hat and placed another upon his head, which he jerked off, and, in throwing it from him, it fell upon the billiard table. Deceased became enraged, approached defendant, and addressed him in an angry and threatening manner. Defendant apologized; made every effort to pacify him; begged for peace. Deceased would accept no apology, but become more and more enraged and threatening in his words and conduct. He had his billiard cue in his hand, uplifted in a striking attitude, and slapped defendant in the face or on the breast. Defendant was much the smaller man, and unable to contend with him. He gave back, or was pushed back by third parties, until he had retreated, or been shoved, to the wall. Deceased, too, was shoved back by third parties, who were endeavoring to separate and keep them apart, but deceased, pushed by these parties, advanced again with his drawn billiard cue, a deadly weapon, swearing he would kill defendant; and when he (the deceased) had gotten within four or six feet of defendant, but not within striking distance of him, at the time, with said billiard cue, the defendant fired the fatal shots in rapid succession. There is no evidence that when deceased slapped or tapped defendant on the face or breast he inflicted either pain or bloodshed upon him.

As to what would constitute "adequate cause" sufficient to reduce the homicide to manslaughter, the court, in the seventh paragraph of its charge, instructed the jury as follows: "By the expression `adequate cause' is meant such as would commonly produce a degree of rage, anger, resentment, or terror in the mind of a person of ordinary temper sufficient to render the mind incapable of cool reflection. Insulting words or gestures, however insulting they may be, or an assault and battery, so slight as to show no intention to inflict pain or injury, are not adequate causes sufficient to reduce a homicide from the degree of murder to the grade of manslaughter. But an assault and battery, causing pain or bloodshed, is a sufficient cause to reduce an unlawful homicide to the grade of manslaughter." This is the only explanation of adequate cause given. Under the facts it was insufficient, and was calculated to mislead the jury. In like circumstances this identical charge was given by the same learned trial judge in Hawthorne's Case, 28 Tex. App. 212, 12 S. W. Rep. 603, and Judge WILLSON, delivering the opinion of the court, says: "While this portion of the charge is abstractly correct, it is not applicable to the evidence. There was no proof * * * of an assault and battery, causing pain or bloodshed. Under this charge the only `adequate cause' was an assault and battery * * * upon the defendant, causing pain or bloodshed. Of course, the jury would conclude under this charge that adequate cause did not exist because no such assault and battery was committed. * * * Adequate cause should not have been so restricted. Any condition or circumstance which is capable of creating sudden passion sufficient to render the mind of a person of ordinary temper incapable of cool reflection may constitute `adequate cause,' and where the evidence shows a number of conditions or circumstances tending either singly or collectively to constitute what a jury might consider adequate cause, the charge should leave the jury at liberty to consider them all in determining whether or not adequate cause existed. * * * The jury should have been left free to determine the question of `adequate cause' from all the facts in evidence tending to show such cause, instead of being restricted, as they were,...