Spearman v. State

• Citation: 4 S.W. 586
• Parties: SPEARMAN v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 18 March 1887
• Court: Court of Appeals of Texas

4 S.W. 586

SPEARMAN v. STATE.¹

Court of Appeals of Texas.

March 18, 1887.

Appeal from district court, Hunt county.

This conviction was for an assault upon W. B. Howard with intent to murder him. A term of two years in the penitentiary was the penalty assessed against the appellant.

The statement of facts discloses that the defendant and Howard, the prosecuting witness, met on the streets of the village of Kingston, and proceeded to shoot at each other with pistols. The testimony for the state shows positively that defendant fired the first shot, and fired it before Howard got his pistol drawn. On the other hand, the testimony for the defense shows as positively that Howard fired the first shot. The defense proved also that a week or two before the shooting Howard warned a citizen to keep his little son off of the street, as a "shooting scrape" between himself and defendant was imminent, and liable to occur at any time.

Mr. Terhune, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

In his charge to the jury the learned trial judge, upon the subject of mutual combat, charged as follows: "When two parties arm themselves, and voluntarily engage in a combat with each other, with deadly weapons, knowing that such combat will or may probably produce the death of either or both of them, then neither of such parties could claim the benefit of the law of self-defense; but, if they both intended to kill, both may be guilty of assault with intent to murder." And, in another paragraph of the charge, as follows: "But if the defendant voluntarily engaged in a combat with W. B. Howard, with deadly weapons, knowing that it would or might probably result in the death of W. B. Howard or of himself, or in some serious bodily injury which might probably result in the death of Howard or himself, * * * he could not avail himself of the privilege of self-defense, no matter to what extent of danger he may have been reduced in the combat, and no matter which party struck the first blow, or fired, or attempted to fire, the first shot, and in such case the defendant would be guilty of assault with intent to murder."

The above-quoted paragraphs of the charge were excepted to by the defendant, and he submits the proposition that, "where a combat is mutually waged with deadly weapons, on equal terms, where death does not ensue, the offense is aggravated assault," and not assault with intent to murder. In support of this proposition he cites King's Case, 4 Tex. App. 56; Wilson's Case, Id. 644; Sanchez's Case, 24 Cal. 17; and Crowey's Case, 56 Cal. 36.

We concede that these cases support the proposition stated, and we concede the correctness of the decisions, when considered with reference to the rule at common law, and without regard to our statute of manslaughter. But, when viewed with reference to our statute of manslaughter, these decisions, in our opinion, cannot be held to be the law of this state, without material qualification. To reduce a homicide from murder to manslaughter, under the law of this state, the homicide must not only be committed under the immediate influence of sudden passion, but that sudden passion must arise from an adequate cause; and this adequate cause is defined to be "such as would commonly produce a degree of anger, rage, resentment, or terror, in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Pen. Code, arts. 592-595. Now, unless this adequate cause existed, the homicide would not be reduced to manslaughter, although it may have been the result of sudden passion on the part of the slayer. At common law, adequate cause was not required to reduce the homicide...