A.C. Van Velzer, for appellant. — It is impossible to distinguish the attack by Allen from the attack by deceased, as it was all one event, or res gestæ. That Allen sought defendant's life is seen in the manner of the attack, the weapons used and in his words to Hillendahl, "Will, kill him." It is impossible to draw any other conclusion from the acts and words of Allen other than he sought the life of defendant. To our minds his part therein is inconsistent with any other purpose than a menace to the life of defendant. Defendant testified that deceased fired the first shot — that shot was fired immediately upon the words being spoken by Allen, "Will, kill him." There were no other persons present in the room other than the deceased, defendant and Allen, and the first shot was fired by deceased at defendant. Carter v. State, 35 S.W. Rep., 378; Bonnard v. State, 25 Texas Crim. App., 173; Cartwright v. State, 16 Texas Crim. App., 473; Meuly v. State, 26 Texas Crim. App., 274; Bean v. State, 25 Texas Crim. App., 346; Jones v. State, 20 Texas Crim. App., 665; McLaughlin v. State, 10 Texas Crim. App., 340.
In a murder case, if the evidence, however inconclusive, tends to prove facts from which the jury might deduce a finding of manslaughter, it is incumbent on the court to charge on that issue. If the court is in doubt whether to so charge, the charge should be given. Halbert v. State, 3 Texas Crim. App., 656; Robles v. State, 5 Texas Crim. App., 346; Jones v. State, 33 Tex. Crim. 492 ; Johnson v. State, 26 Texas Crim. App., 631; Hill v. State, 5 Texas Crim. App., 2; Williams v. State, 7 Texas Crim. App., 396; Spivey v. State, 30 Texas Crim. App., 343; Phillips v. State, 26 Texas Crim. App., 228.
The statute defining "adequate cause" is merely explanatory and is not restrictive. Any facts sufficient to create sudden terror, or passion so as to cause a person of ordinary temper to be incapable of cool reflection is adequate cause. Childers v. State, 33 Tex.Crim. Rep.; Williams v. State, 15 Texas Crim. App., 617; Wadlington v. State, 19 Texas Crim. App., 266; West v. State, 2 Texas Crim. App., 460.
When any facts, whether singly or collectively, tend to show conditions or circumstances which a jury might consider adequate cause that issue should be submitted. Gilcrease v. State, 33 Tex. Crim. 619 ; Baltrip v. State, 30 Texas Crim. App., 545; Milrainey v. State, 33 Tex.Crim. Rep.; Mackey v. State, 13 Texas Crim. App., 360.
The fact that this is a clear case of self-defense, according to defendant's theory, does not lessen the "sudden terror" or "adequate cause." That a man under such circumstances would ordinarily be incapable of cool reflection does not affect his right of self-defense. Hawthorne v. State, 28 Texas Crim. App., 212; Cochran v. State, 28 Texas Crim. App., 422; Jones v. State, 17 Texas Crim. App., 602; Arto v. State, 19 Texas Crim. App., 126; Bonner v. State, 29 Texas Crim. App., 223; Orman v. State, 24 Texas Crim. App., 495; Jackson v. State, 32 Tex. Crim. 192 ; Thuston v. State, 21 Texas Crim. App., 245.
In our motion for a new trial and in our assignments of error we have pointed out that the general charge on self-defense was upon the weight of evidence, and that it was more onerous upon defendant than the law requires. For instance, the court charged the jury that if deceased first fired at defendant and if deceased caused defendant to fear for his life or to fear serious bodily harm then defendant had the right to protect himself. Defendant's right of self-defense is made to depend at all events upon the belief or finding that deceased fired the first shot. Such is not the law. Defendant's right of self-defense depended upon the appearance of danger and not upon whether Hillendahl fired the first shot. The court seems to have attempted to apply the language in his charge to the facts of the case, but in so doing misdirected the jury in this fundamental respect. It was a disputed point as to who fired the first shot, the two State's witnesses testifying that defendant fired first while defendant testified that deceased fired first. With this
conflict of evidence, to require defendant to await his self-defense until he is fired at once by deceased is not the law, and the court in requiring the jury to find both that deceased first fired at defendant and also that defendant was in danger before he shot deceased went beyond any requirement of the law that we have become familiar with. The right of self-defense arose from the appearances of danger alone and not from the fact alone that Hillendahl fired first, nor from a finding that Hillendahl fired first when considered with any other fact. But the court told the jury that Lenz had a right to defend himself only in the event that Hillendahl had already fired at him and appeared to be still in danger.
Howard Martin, Assistant Attorney-General, for the State.