Pitts v. State

• Decision Date: 25 February 1891
• Citation: 16 S.W. 189
• Parties: PITTS v. STATE.
• Court: Texas Court of Appeals

16 S.W. 189

PITTS v. STATE.

Court of Appeals of Texas.

February 25, 1891.

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

S. C. Upshaw and Crane & Ramsey, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This appeal is from a judgment of conviction for murder of the second degree. Defendant's defense was that the killing was on account of grossly insulting language used by deceased of and concerning the defendant's wife. The first bill of exceptions was reserved to the action of the court in refusing to permit defendant to prove by the witness Johnson, in effect, that a short time before the killing he, the witness, had stopped at the Covington House, and had there seen deceased and Mrs. Covington in bed together. This fact was not known to defendant at the time of the killing, and could therefore neither add to nor illustrate the passion supposed to have been engendered in his mind by the language used by the deceased to the effect that "his [defendant's] wife was no better than Mrs. Covington." Such evidence was immaterial and irrelevant, and it was not error to exclude it. Our statute expressly provides that "insulting words or conduct of the person killed towards a female relation of the party guilty of the homicide" will be deemed an adequate cause to reduce a homicide to manslaughter, (Pen. Code, art. 597, subd. 4;) but "it must appear that the killing took place immediately upon the happening of the insulting conduct or the uttering of the insulting words, or so soon thereafter as the party killing may meet with the person killed, after having been informed of such insults." Pen. Code, art. 598. On the part of the state the proof showed that on the day before the homicide defendant was on the street, immediately in front of his office, in conversation with another party about the trouble between himself and deceased, when the deceased was seen coming up the street. Defendant said, when he saw him, "Yonder comes the son of a bitch now. Don't let him come here." Deceased approached to within 60 or 70 feet of defendant, the space between them being unobstructed, and then turned into a drug-store, purchased and lighted a cigar, and again came out upon the sidewalk, and turned and walked off in a different direction from where defendant was still standing. Defendant at this time was unarmed, and made no demonstrations or effort to avenge the insults and wrongs which had been done his wife. In view of this evidence it was insisted in behalf of the state that the bringing of the parties thus near together (within 60 or 70 feet) constituted a "meeting" in contemplation of the statute, and that no subsequent meeting could justly or legally be claimed as a first meeting, or, in the language of the statute, "so soon thereafter as the party killing may meet with the person killed, after having been informed of such insults." Defendant's counsel contended, and still contends, that the evident meaning of the statutory language is, "the first time the defendant comes in contact with the deceased when defendant is armed and prepared to kill deceased," and, a special instruction to this effect having been requested for defendant and refused by the court, the refusal to give the same is strenuously urged as error. In the brief of counsel for appellant the proposition is boldly announced and urged that our statute intends to give a male relative, under the circumstances named, not only the opportunity, but the ability at the same time, to kill, before such meeting can be counted against him. Carried to its legitimate extent, the contention involves the conclusion that the male relative may meet the insulting party a thousand times if need be, and yet, if he is not armed and prepared to kill, he may at any time afterwards, when he is so prepared, and opportunity presents itself, kill; and that in so killing his offense under the statute may only be manslaughter. We cannot subscribe to such a construction of the statute. To our minds the language is plain and unambiguous, — the killing must take place "so soon as the party killing may meet" the insulting party; in other words, it must be done at the first meeting. This much the law has conceded and yielded to human frailty and passion. Passion is the evidence of manslaughter, under our Code. (Hinton v. State, 24 Tex. 454,) and the passion must be such as would render the mind incapable of cool reflection, (Pen. Code, art. 594, subd. 3; Willson, Crim. St. §§ 1009, 1022.) The law never intended to furnish a party with the opportunity and means of taking unlawfully the life of a human being. It is only in consideration of an ungovernable passion that murder is reduced to manslaughter. Recognizing this infirmity in man, the law presumes such passion will assert itself on the first opportunity, and, if the party happens to be or is intentionally armed after hearing of such insults, and he meets the wrong-doer, and, being carried away by his passion, slays him, the law mitigates the crime and punishment in consideration of the fact that his mind was incapable of cool reflection, and the offense becomes manslaughter instead of murder. It was never intended, and we trust never may be permitted, that, an opportunity once being afforded for passion to assert itself, the injured party may afterwards coolly, calmly, and deliberately select time, place, circumstances, weapons, and his own convenient opportunity, and then in revenge kill his victim, without holding him guilty of murder. We are not aware of any decision in our reports of this state expressly construing the word "meet" as used in this statute. A general rule declared by statute as to construction is that "all words used in this Code, except where a word, term, or phrase is specifically defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed." Pen. Code, art. 10. Mr....