40 S.W. 798


ABRAMS
v.
STATE.


Court of Criminal Appeals of Texas.
May 19, 1897.

        Appeal from district court, Freestone county; L. B. Cobb, Judge.

        Pink Abrams was convicted of manslaughter, and appeals. Affirmed.

        Gardner & Gardner, for appellant. Mann Trice, for the State.

        HENDERSON, J.

        Appellant was convicted of manslaughter, and given two years in the penitentiary; 
hence this appeal. On the trial of the case appellant offered to introduce in evidence the 
verdict of the jury at a former trial, the judgment of the court in that trial, mandate of the 
court of criminal appeals reversing and remanding the case, and also the opinion of said 
court. The state objected to the introduction of the judgment and opinion of the court, and 
said objection was sustained, and the defendant excepted. There was no error in the 
action of the court. It appears that no objection was made to the introduction of evidence 
regarding the former trials, as the court states in his explanation to this bill. However, 
when appellant proposed to introduce the opinion of the court in evidence before the jury, 
an objection was made by the state, and we think the objection was properly sustained.

Page 799

        Appellant also assigns as error the action of the court in refusing to charge the jury, 
as verbally requested by him, to find the defendant not guilty on the ground that he had 
heretofore been tried and acquitted of murder; and the evidence on this trial showed that 
if guilty at all he was guilty of murder of the first or second degree, and not of 
manslaughter, and that consequently he requested the instruction to be given. In our 
opinion, the court gave in the charge to the jury all that was necessary for the protection 
of the defendant's rights in connection with said former acquittal. The court in its original 
charge only charged on manslaughter, and instructed the jury that the defendant had at a 
former trial been acquitted of murder, and that he could not again be tried for said 
offense, but was only on trial for manslaughter. In addition he gave a special charge 
requested by appellant to the effect that, if defendant stabbed and killed deceased with 
malice aforethought, he would not be guilty of manslaughter, and should be acquitted. 
We think this presented the issues as fairly as defendant could ask, under the 
circumstances of the case. In our opinion the charge of the court on manslaughter was 
sufficient, and properly presented the issues on that subject. The evidence leaves it 
uncertain whether defendant drew his knife before or after the fight began. If he entered 
into the fight willingly, and fought voluntarily and not in self-defense, and after he was 
struck by the deceased he then, for the first time, formed the intent to kill, and drew his 
knife and stabbed deceased, it would be manslaughter, and not murder. This phase of the 
case was presented to the jury. Of course, if he formed the intent to kill deceased, and 
drew his knife for that purpose, and then attacked deceased, and stabbed him to death, he 
would be guilty of murder. This would be a killing upon malice aforethought. This phase 
of the case was presented on behalf of the defendant, and the jury instructed to acquit if 
the killing was upon malice aforethought. We believe the charge of the court on 
provocation was in accord with the testimony in the case, and was not error. There being 
no errors in the record, the judgment is affirmed.