188; Favors v. State, 20 Tex. App. 156; Rosborough v. State, 21 Tex. App. 672; see also, upon this point, Newcomb v. State, 37 Miss. 383; and also the case of Kent v. State, Ohio, reported in full in 6 Criminal Law Magazine, 520, in which the cases are reviewed, and the doctrine upon the subject elaborately discussed. It is shown by the evidence that the witness Moore had been a party to and associated with the deceased in all the troubles and difficulties between the latter and the defendant, and the extent to which he was biased was legitimate matter to be considered by the jury in determining the credibility of his testimony. Defendant's fourth bill of exceptions was taken to the exclusion of his statements made to his brother, John Bonnard, on the night of the difficulty, and when he first met his brother after the difficulty, in which he detailed all the circumstances of the difficulty fully, and in which he also explained to his brother the fact that he had related the circumstances differently to the young ladies at Mrs. Welch's immediately upon his return from the scene of the difficulty, and told him the reasons which induced and influenced him in making the statement as he did make it to those young ladies. The prosecution had proved by these young ladies what defendant's statements to them were, and the defense proposed to prove the statements made to his brother in order to explain these statements, under the statutory rule that "when a detailed act, declaration, conversation, or writing is given in evidence, any other act, declaration, or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence": Code Crim. Proc., art. 751. We are of opinion the bill of exceptions brings the excluded evidence directly within the purview of the rule as the same has heretofore been construed by this court in Green v. State, 17 Tex. App. 395; Harrison v. State, 20 Id. 387; 54 Am. Rep. 529; Rainey v. State, 20 Tex. App. 455; Gaither v. State, 21 Id. 528; and that it was error to exclude the testimony. This case is not analogous to the Lilly Gibson Case, 23 Id. 414, in this particular. Appellant having been convicted of murder of the second degree, this eliminates from discussion all questions as to the correctness of the charge of the court as to murder of the first degree. As to murder of the second degree, manslaughter, self-defense, etc., many attacks are made upon the charge as a whole, and to each particular paragraph, as well as to the action of the court in refusing all of defendant's special re AM. ST. REP., VOL. VIII.-28 quested instructions. It would be a useless consumption of time to attempt a review of all the matters thus presented, and so strenuously urged in the oral arguments and able brief of counsel for appellant. Suffice it to say that, in quite a number of the particulars mentioned, the charge is to some extent confusing if not misleading, and in one of the particulars specially complained of is clearly erroneous. We will summarize the several phases in which the evidence presents the case to our minds, and to which the charge should have been mainly, pertinently, and affirmatively directed. 1. The state's theory was, that defendant and deceased had been at enmity for some months, and defendant had made serious threats against the deceased; these threats had perhaps been communicated to deceased, and he was anticipating and prepared for trouble with defendant when he should meet him. Now, if, under these circumstances, both parties had determined in their minds to bring on a difficulty when they should meet, in which the one intended to kill the other, or inflict serious bodily injury which might result in death, then if such was the case, and a difficulty and death ensued, no matter which provoked it, the party killing would be guilty of murder: Penal Code, art. 603. 2. If defendant, however, did not intend to provoke a difficulty with deceased, but sought the interview with him solely for the purpose of demanding pay for his spurs, and a difficulty ensued, in which defendant, on account of abuse heaped upon him by deceased, voluntarily slew him in heat of passion engendered by the present abuse, taken in connection with the previous wrongs done him by deceased, and the circumstances all together combined were of such a character as to produce adequate cause sufficient to render the mind incapable of cool reflection, then such killing would be manslaughter: Wadlington v. State, 19 Tex. App. 266; Johnson v. State, 22 Id. 206; Howard v. State, 23 Id. 265. 3. If defendant sought an interview with deceased with no hostile intentions, and deceased became enraged and committed an assault upon defendant which did inflict pain or bloodshed, and under the passion thus engendered defendant shot and killed deceased, the pain or bloodshed would amount to "adequate cause," and the killing would be manslaughter. The charge of the court was radically defective in not presenting this phase of the law of the case in affirmative terms: Hill v. State, 8 Tex. App. 142; Foster v. State, 8 Id. 249. 4. If defendant sought the interview with deceased with no hostile intentions, but simply and solely to demand a settlement and pay for his spurs, and deceased became angry and a wordy altercation ensued, during which deceased drew his pistol and assaulted defendant with it in such a manner as to create in defendant's mind a reasonable apprehension of death or serious bodily injury, and, acting upon such reasonable apprehension, defendant fired the fatal shot, then and in that event he would be justifiable, upon the ground of necessary self-defense: See Willson's Crim. Stats., sec. 1070. These are, in our opinion, in brief, the essential principles of law applicable to the facts of the case as shown by the record, and they should have been submitted plainly, fully, and affirmatively, and without unnecessary verbiage, by the charge. For the errors pointed out, the judgment is reversed and the cause remanded. WHEN MOTIVE OF WITNESS IN PERFORMING PARTICULAR ACT, or in making a particular declaration, becomes material in a cause, he may himself be sworn in regard to it: Kerrains v. People, 60 N. Y. 221; 19 Am. Rep. 158. MURDER, INGREDIENTS OF-INTENT: State v. Landgraf, 95 Mo. 97; 6 Am. St. Rep. 26, and note 31; Tiffany v. Commonwealth, 121 Pa. St. 165; 6 Am. St. Rep. 775, and note 780; Lang v. State, 84 Ala. 1; 5 Am. St. Rep. 324, and note 328; Schaffer v. State, 22 Neb. 557; 3 Am. St. Rep. 274, and note 279; Spies v. People, 122 Ill. 1; 3 Am. St. Rep. 320. MANSLAUGHTER, KINDS OF, AND WHAT AMOUNTS TO: State v. Ellick, 2 Winst. 56; 86 Am. Dec. 442; Golliher v. Commonwealth, 2 Duvall, 163; 87 Am. Dec. 493; State v. Hardie, 47 Iowa, 647; 29 Am. Rep. 496; State v. Emory, 78 Mo. 77; 47 Am. Rep. 92; Harrington v. State, 83 Ala. 9. SELF-DEFENSE, RIGHT OF: Tillery v. State, 24 Tex. App. 251; 5 Am. St. Rep. 882, and cases collected in note 887; Fariss v. State, 85 Ala. 1; Vollmer v. · State, 24 Neb. 838; State v. Keasling, 74 Iowa, 528; State v. Rose, 92 Mo. 201; Duncan v. State, 49 Ark. 543. MULLIGAN V. STATE. [25 TEXAS APPEAL, 199.] A DEMOLISHED BUILDING IS NOT A "HOUSE," SO AS TO BE THE SUBJECT as "any build. OF ARSON, within a statute which defines such "house" ing or structure inclosed with walls, and covered." ARSON - BURNING OF PREMISES LEASED BY ACCUSED INDICTMENT. Where accused is a tenant, entitled to occupancy and possession, he is a part owner, and occupies such a relation to the premises as requires that the indictment should allege the particular facts making him amenable to prosecution for arson in case such house has been burned by him: Texas Penal Code, arts. 658-660. J. H. Wood, for the appellant. W. L. Davidson, assistant attorney-general, for the state. Two WHITE, P. J. Appellant was convicted of arson. counts were contained in the indictment, one for the burning of a house, and the other for the willful burning of a "pile of wood, the same being a set of house logs." Defendant's motion to quash the indictment was sustained as to the second, or the count for willful burning. Appellant was the tenant of one Duke, and during his tenancy had erected a crib upon the rented premises, which crib the landlord, Duke, refused to pay for when the parties were having their settlement with a view to the expiration of the lease. Defendant declared time and again that he would burn the crib. About the time he was moving or preparing to move from the premises, he pulled down the crib, and in the night before he moved, the logs of which the crib had been built, and which he had torn down, were set fire to and burned. Two questions present themselves in connection with these facts: 1. Was a house burnt? and 2. If a house was burnt, could defendant be convicted for burning it when he was still in possession as a tenant of the leased premises upon which it stood? "Arson" is defined by our code to be "the willful burning of any house included within the meaning of the succeeding article of this chapter": Penal Code, art. 651. The succeeding article 652 defines a "house" as any building or structure inclosed with walls, and covered, whatever may be the materials used for building: Smith v. State, 23 Tex. App. 357; 59 Am. Rep. 773. We think it clear that when the building was torn down, it ceased to be "a building or structure," because it had lost the arrangement of its parts, -its form, make, and construction. It had no longer the inclosure of walls, and it was no longer covered. It had lost all the essential characteristics of "a house." The logs might still be called "house logs," but they ceased to be "a house." They might, perhaps, be classed as lumber or wood, and as such, the appellant might, perhaps, have been prosecuted and convicted for willfully burning them, under the provision of article 665 of the Penal Code, provided he was at all liable for their destruction. And this brings us to a consideration of the second proposition, viz.: Could defendant be prosecuted and convicted for arson whilst he was still in possession and control of the leased premises upon which the property was situate when destroyed? At common law, "a man could not commit arson of a house in which he has a lawful claim to abide; as a tenant from year to year, or from month to month, be his term however short; or under an agreement for a lease": 2 Bishop's Crim. Law, 7th ed., sec. 13. Mr. Wharton says: "A tenant (occupancy being the test) cannot be guilty, at common law, of arson in burning the property he occupies on lease. On the other hand, a landlord, it would seem, may be guilty of arson in burning his house in a tenant's possession": Wharton's Crim. Law, 8th ed., sec. 836; State v. Hannett, 54 Vt. 83; 4 Am. Crim. Rep., Gibbons, 38. Our statute (Penal Code, art. 659) provides for certain exceptions to the rule that even the owner may destroy his own house, one of which is, "when there is within it any property belonging to another"; and article 660 expressly declares that "one of the part owners of a house is not permitted to burn it." Under our statute, the tenant, during his lease, should be considered only a part owner in the house, and the landlord certainly has a property in it which the tenant could not destroy with impunity. Still the tenant is the party entitled to the possession, and arson is regarded as an offense against the security of the habitation rather than that of the property and true ownership. But an indictment against an owner or part owner for burning his own house (arts. 658-660) must allege ownership in the accused, and the particular facts which may bring him within the exceptions as amenable to prosecution: Tuller v. State, 8 Tex. App. 501; Willson's Crim. Forms, 411. Appellant being a tenant entitled to occupancy and possession, he was at least a part owner, and occupied such relation to the premises as, in our opinion, required that the indictment should have alleged the particular facts making him amenable to prosecution for the arson, in case a house has been burnt by him. Our conclusions upon the facts and law of:the case are, first, that the indictment is insufficient in allegation to warrant the conviction of this defendant as a tenant; and second, if the indictment had been sufficient, the evidence totally fails to establish the crime of arson,- that is, "the burning of a house." The judgment is reversed and the cause remanded. |