the hall and called, "Pa;" that she did not remember hearing him say anything else. She was asked if, when they walked out in the hall, she did not put her hands over her ears to keep from hearing the report of the gun. She says after the shot she placed her hands over her ears to keep from hearing any more shots if they were fired. This witness had testified at the coroner's inquest and her testimony reduced to writing. The state was permitted to show her this written statement to refresh her memory and propound to her certain questions with this end in view. It is always permissible to refresh the memory of a witness. McLin v. State, McLin v. State, 48 Tex. Cr. R. 551, 90 S. W. 1107; Spangler v. State, 41 Tex. Cr. R. 430, 55 S. W. 326. But, after having attempted to do so, one is not permitted to prove what his own witness had testified on a former occasion, unless the witness swears to facts injurious to his cause. Mere failure to swear to facts that one expects to prove by a witness furnishes no grounds to prove that the witness had so testified on a former occasion. At common law one could not impeach his own witness. By placing the witness on the stand he was supposed to vouch for the truthfulness of the witness. Our Code has so far modified the rule that a party may attack the testimony of his own witness when the facts stated by the witness called by him are injurious to him, but in no other instance can he attack a witness whom he calls. Article 815, C. C. P. Mr. Branch, in his Criminal Law, has well stated the correct rule, in section 866: "Error to permit the state to impeach her own witness, where such witness merely fails to remember, or refuses to testify, or fails to make out the state's case. A mere failure to make proof is no ground for impeaching such witness. Bennett v. State, 24 Tex. App. 77, 5 S. W. 527 [5 Am. St. Rep. 875]; Dunagain v. State, 38 Tex. Cr. R. 614, 44 S. W. 148; Smith v. State, 45 Tex. Cr. R. 520, 78 S. W. 519; Scott v. State, 52 Tex. Cr. R. 165, 105 S. W. 796; Wells v. State, 43 Tex. Cr. R. 451, 67 S. W. 1020; Owens v. State, 46 Tex. Cr. R. 16, 79 S. W. 575; Hanna v. State, 46 Tex. Cr. R. 8, 79 S. W. 544; Ware v. State, 49 Tex. Cr. R. 415, 92 S. W. 1093; Skeen v. State, 51 Tex. Cr. R. 40, 100 S. W. 770; Quinn : State, 51 Tex. Cr. R. 156, 101 S. W. 248; Shackleford v. State, 27 S. W. 8; Finley v. State, 47 S. W. 1015; Knight v. State, 65 S. W. 89; Gibson v. State, 29 S. W. 471; Kessinger v. State, 71 S. W. 597; Erwin v. State, 32 Tex. Cr. R. 519, 24 S. W. 904; Williford v. State, 36 Tex. Cr. R. 425, 37 S. W. 761; Ozark v. State, 51 Tex. Cr. R. 108, 100 S. W. 927; Gill v. State, 36 Tex. Cr. R. 596, 38 S. W. 190; Largin v. State, 37 Tex. Cr. R. 574, 40 S. W. 280; Thomas v. State, 14 Tex. App. 72; Dawson v. State, 74 S. W. 912; Goss v. State, 57 Tex. Cr. R. 557, 124 S. W. 108." Having attempted to refresh the witness' memory by exhibiting to her a copy of the statement she made at the coroner's inquest, and she having denied making such statement, it was error to permit the state to introduce the following portions of her state "Willis Taylor was sitting down in the east room near the north window, and got up and went to the north window and said, 'Yonder they are [or gol, Pa;' I don't remember which; I think he said, 'Yonder they are.' *** He [J. B. Taylor] came here this morning afoot, and brought a double-barrel shotgun with him. This is the gun that was on the bed in the west * When J. B. Taylor and his son Willis left the room, I placed my hands over my ears to keep from hearing the gun." room. * * It was also error to permit Justice of the Peace Gaines to testify to the same facts. As Mrs. Frank Taylor is a daughter-inlaw of appellant, and consequently likely to feel a deep interest in his trial, it may seem a harsh rule of law to the state that under such circumstances, she having testified to facts at the coroner's inquest which would have a strong tendency to show that Willis Taylor killed Gilley in accordance with a preconceived design of himself and appellant, and therefore was guilty of murder, and would have a strong tendency to show that appellant was a principal in the commission of the offense, he being present, yet the state cannot prove she did so testify at the coroner's inquest, although she on the trial declines to so testify; yet such is the law. If, in addition to testifying that she did not recollect so testifying, she had testified to facts affirmatively hurtful to the state, she could have been impeached, but it was simply an instance where a witness declined to testify to facts that she had once before testified to, and the state had a good right to believe she would testify on this trial. The witness insisted she had no recollection of whether or not J. B. Taylor brought a gun with him that morning; that she does not recollect Willis Taylor going to the north window and saying, "Yonder they come, Pa," just before the shooting, and that she had no recollection of putting her hands over her ears as they went out of the room to keep from hearing the shot. As before stated, at common law one could not impeach his own witness, and the Legislature has seen proper to modify this rule only to the extent that one may impeach his own witness when, to his surprise, he not only fails to testify as he expected, but instead thereof testifies to facts adversely to the interest of the person placing him on the witness stand. [6] In a couple of other bills it is shown that after appellant had testified in his own behalf he placed witnesses on the stand who say they had known him for 30 years; that appellant had lived in Smith county that long, and his reputation during all that time was that of a peaceable, law-abiding citizen. On cross-examination state's counsel asked the witnesses if they had heard that appellant killed a man in Georgia before he came to Texas. The first witness answered, "No," before the court could rule on the objection that such circumstance was too in danger, and this was the occasion of his doing such acts, he would not be guilty. The court's charge as given did not aptly and tersely state all these propositions of law, but we are satisfied it is only necessary to call the court's attention to them and he will do so on another trial. however, sustained the objection when made. [ standpoint, it reasonably appeared to him Notwithstanding the court did so, when the that his life or the life of his son Willis was next witness took the stand, the prosecuting officer again propounded the same question, and before an objection could be made the witness answered, "Yes," and stated that he had also heard that before appellant came to Texas he was a member of the Jesse James gang of outlaws. This was improper, and such testimony was wholly inadmissible for any purpose, being too remote in time to affect his standing as a law-abiding citizen. If it was true that appellant had killed a man in Georgia more than 30 years ago, and at that time was a member of the Jesse James gang, yet if during the entire 30 years he has been a citizen of Smith county, Tex., his life and conduct has been that of a peaceable, law-abiding citizen, the remote circumstances should not, and will not be permitted to be, explored as affecting his standing as a citizen at this time. [7, 8] These are all the bills in the record, except the objections to the charge as given, and the exceptions to the refusal to give a number of special charges requested. Appellant was found guilty of manslaughter only, and a number of exceptions would pass out, but we do not deem it necessary to detail the various objections raised, nor give the 17 special charges requested and refused, but rather state simply the law as applicable to the facts in this case. As appellant testified that before Willis Taylor fired the gun deceased drew a pistol, etc., the court should have given in charge the law of selfdefense as to Willis Taylor both from apparent danger to himself and his father and the right to defend from danger viewed in the light of threats communicated, and told the jury, if Willis Taylor was justifiable, appellant would be guilty of no offense, and instructed them that, even though they found Willis Taylor was not justifiable in killing deceased, yet they would find appellant not guilty, unless they found beyond a reasonable doubt he was a principal in the commission of the offense, and should also have instructed the jury, that, even though appellant was present and aided Willis Taylor, or by his conduct, words or gestures encouraged Willis, to commit the offense, yet if at the time he did so it reasonably appeared to him that his life or that of his son Willis was in danger, and, acting under such belief, he did acts that might otherwise constitute him a principal, he would not be guilty; in other words, if Willis Taylor was justifiable, as viewed from his standpoint, appellant would not be guilty. If Willis Taylor was guilty, unless the jury found beyond a reasonable doubt appellant was a principal in the commission of the offense, he would not be guilty, or if he did acts that would constitute him a principal, yet in so doing, viewing the matter from appellant's There are some other verbal criticisms of the charge that we do not deem it necessary to discuss, but will only add that the court used inappropriate language in the following paragraph: "If you shall find, or have a reasonable doubt grade of homicide, and that he is not justified thereof, that the defendant is guilty of some under the charge of self-defense, you will acquit him of murder, and find him guilty of no higher grade of offense than manslaughter." Appellant contends that paragraph suggests to the jury to find appellant guilty of manslaughter, even though they may have a reasonable doubt of his guilt of such offense. A man who did not read the paragraph critically might be misled into such belief, but on another trial it cannot again arise as appellant has been acquitted of murder, but construction language of such doubtful should not be used in applying the law of reasonable doubt as between murder and manslaughter. The judgment is reversed, and the cause remanded. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.] 3. HOMICIDE 309- MANSLAUGHTER-IN- [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. 309.] been guilty of adultery before the killing, and proper relations existed between deceased that defendant had no knowledge thereof and and his wife, it is the law of this state that no information from which he could believe such to be the case, the mere fact of adultery would in order to reduce a killing to manslaughnot of itself reduce the killing to manslaughter, ter, when this ground is relied on, the killwas erroneous, as not fairly presenting the is- ing must take place at the first meeting of sues made. the parties after he has become aware of the facts. The state's theory is that, although the record discloses that perhaps the reason why appellant killed deceased was his belief that improper relations existed between him and his wife, yet he had met deceased on several occasions after he came to such con clusion, and on the occasion in question åppellant went upstairs in his residence, waitshot deceased from ambush when he was 4. HOMICIDE 309— MANSLAUGHTER-IN STRUCTIONS-ADEQUATE CAUSE. Adultery with the wife may reduce a homicide to manslaughter, and accused, relying on such defense, is entitled to an instruction to that effect. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. ed until deceased came out of his store, and 309.] 5. HOMICIDE CATION. 47-MANSLAUGHTER-PROvo- doing nothing more than standing talking to Adultery of defendant's wife with deceased need not be such as to cause offense to the wife, and where it is shown that she is equally at fault, yet, if the conduct is such as to be an outrage against the husband, adequate cause would exist reducing the homicide to manslaugh ter. Where defendant had reason to believe that his wife had committed adultery with deceased, and that the latter was then endeavoring to have such relations renewed, and it rendered his mind incapable of cool reflection, he would be guilty only of manslaughter on killing deceased. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 71; Dec. Dig. 47.] 7. WITNESSES SCOPE. Where defendant claimed provocation arising from the adultery of his wife with the deceased, and the wife at the trial admitted such relations, the state on her cross-examination could prove her statements to the county attorney immediately after the homicide that she and deceased had been guilty of no misconduct, but could not elicit from her that defendant kept his gun downstairs and slept there, where he shot deceased from an upstairs window, as tending to show preconceived killing, as not proper cross-examination. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 949-954; Dec. Dig. 269.] Appeal from District Court, Ellis County; F. L. Hawkins, Judge. a friend. If this is true, the appellant would be guilty of murder, and we would not disturb the verdict on the ground of the insufficiency of the evidence. It is true, if we accept the defendant's theory of the case, and he has some evidence to support it, it would be, as said by appellant's counsel, a typical manslaughter case. [2] But the jury is the trier of facts under our system of jurisprudence, and it is seldom an appellate court feels authorized to reverse a case solely on the ground of the insufficiency of the evidence, no matter what the court's individual opinion of the evidence might be, if the state's evidence is worthy of credit, and, if true, will support the verdict rendered. 269-CROSS-EXAMINATION— [3] The most serious question is, and virtually the only question as made by the record: Did the court properly submit the law of manslaughter as applicable to the evidence adduced on this trial? No other theory or idea can be gathered from the reading of this record other than that appellant killed deceased because of his belief that improper relations existed between deceased and his (appellant's) wife. It would be a different question, though he believed this, as to whether the killing would occur under circumstances which would reduce the offense to manslaughter. One cannot meet the wrongdoer frequently, and, while brooding over his wrongs, deliberately determine to slay him, and then kill him from ambush and hope to have the offense reduced to manslaughter. Under such circumstances it would be a premeditated killing, and not a killing from an impulse of the character defined by the manslaughter statute created by the wrong done or sight of the wrongdoer. We say that there can be no doubt that the killing was occasioned by the belief of appellant that deceased and appel[1] Appellant insists that the evidence in lant's wife were guilty of improper relathis case would only support a verdict for tions, because the record suggests no other manslaughter, and the court erred in sub- thought or motive, and the state's witnesses mitting the issue of murder. In this we themselves testify to such a state of facts as, think he is in error, for, although it is appar- we think, shows this beyond a shadow of a ent from the whole record that appellant kill- doubt. Mr. Odom, a state's witness, says ed deceased because of his belief that im- that appellant came to him to borrow money J. C. Mitchell was convicted of murder, and he appeals. Reversed and remanded. Farrar & McRae, of Waxahachie, for appellant. Tom Whipple, Co. Atty., of Waxahachie, and C. C. McDonald, Asst. Atty. Gen., for the State. HARPER J. Appellant was convicted of murder, and his punishment assessed at ten years' confinement in the state penitentiary. to send his wife away, and he loaned it to the matter. him for that purpose. He says: "Defendant told me that his wife and Sparks were, he thought, too thick, and he had just kept for some time from killing the man, and could not stand it any longer if he could not get shed of the woman, and asked me if I would loan him the money. I told him if it was agreeable for all parties and would save trouble I would." Appellant and his wife had words over this incident. Appellant says he went on with his farming until the day of the homicide, when he says, not feeling well, he was lying down upstairs, and upon looking out the window saw deceased again making signs, as he thought, to his wife, when he grabbed his gun and shot. The court instructed the jury: "If you believe from the evidence that defendant's wife and the deceased had been guilty of carnal intercourse with each other prior to dence, beyond a reasonable doubt, that the dethe killing, and you further believe from the evifendant had no knowledge thereof, and no information from which he could reasonably beed that the mere fact of defendant's wife and lieve such to be the case, then you are instructthe deceased having had carnal connection with each other would not of itself reduce the killing to manslaughter. After the loan was made appellant gave the money to his wife, and she left. Mr. Odom says that appellant talked to him twice, and he seemed greatly troubled about the conduct of his wife and deceased. He and all other witnesses for the state, who lived in the community, show that the conduct of deceased and appellant's wife was a matter of common talk; that, while no one knew that any act of intercourse had occurred, yet her frequent visits to the store and Appellant filed written objections to this their conduct towards each other, had caus- paragraph of the charge, and we think the ed in the community generally an impression objections well taken. It is an incorrect that everything was not exactly right. Ap- proposition of law as applicable to the evipellant sent his wife away, but she went dence in this case. It is true that there is only to Dallas. Two days thereafter deceas- no positive testimony that appellant knew ed also went to Dallas, and the evidence that an act or acts of intercourse had taken would show to a moral certainty that de- place, yet the record is replete with evidence ceased and appellant's wife were in the same that he knew of facts and circumstances and room in a hotel in Dallas. The testimony of had information that would authorize him to the hotel clerk and Mrs. Brown, housekeeper believe, and he did believe, that improper reof the hotel, show this, and Mrs. Brown lations existed, and that they were guilty of made them leave the hotel. Appellant's wife improper conduct. There is nothing in evinow admits that she and deceased occupied dence to base a finding that appellant "had the same room in the hotel, and there had no information from which he could reasoncarnal intercourse; that she went home with ably believe such to be the case." The recdeceased (his wife being absent) and spent ord, and the entire record, shows that appelthe night with him. It is true appellant was lant was in possession of information that not apprised of this as a fact until after he led him to believe, and he did believe, that killed deceased. After this appellant's wife improper relations existed, and the killing came back home. Appellant insisted on her took place because of such belief; and in this leaving, telling her that she would disgrace instance we think the record discloses that their children by her course of conduct with his belief was well founded. This paragraph deceased. It is not a case where appellant is instructed a conviction for a higher grade alone shown to have had that opinion, but of offense than manslaughter on grounds unall the witnesses from that community who authorized by law under the evidence. As testify show that such was the common we view this record, there is but one ground rumor. A state's witness, Mr. Dillehay, who that would authorize a conviction for a highstayed at deceased's store while he was gone er grade of offense than manslaughter, and to Dallas, went to appellant and explained that is that appellant did not slay deceased to him he would not have stayed at the store at the first meeting; for while appellant had for deceased if he had known he was going this information the record shows he had to Dallas, where appellant's wife was stay- come in contact with deceased since receiving; that deceased misled him, and led him ing such information, and, unless at the time to believe he was only going to Waxahachie. of the homicide deceased did the acts appelThis in and of itself was enough to let ap- lant contends he did do, and from such conpellant know that his neighbors held the duct appellant was led to believe that desame opinion which he held. Appellant says ceased was endeavoring to get his wife to rethat after his wife came home from Dallas, new such relations, then a jury would be and insisted on staying over his protest, he authorized to find him guilty of murder. On finally agreed that she could do so if she this issue the state has evidence that appelwould not go to deceased's store again, and lant's contention is not correct, but the issue have no further communication with him. should be fairly presented in the charge Appellant then says that a few days after that, if deceased made the signs appellant his wife's return to her home he saw de- contends he did, and this conduct, viewed in ceased making signs to her and waving a the light of the information appellant had handkerchief at her. The testimony of the received prior to that time, led appellant to state's witness Odom shows that deceased believe it was an effort on the part of deat this time knew how appellant was viewing | ceased to induce appellant's wife to renew the relations, and this conduct raised such degree of anger, rage, or resentment as to render his mind incapable of cool reflection, he would only be guilty of manslaughter. [4] Adultery with the wife is declared by the statute to be adequate cause, and the court should have so instructed the jury, and he erred in refusing to do so at appellant's request. The court, in defining "adequate cause," instructed the jury: "You are charged that insulting conduct of the person killed towards the wife of the party doing the killing is adequate cause; provided the killing occurs immediately upon the hap pening of the insulting conduct or so soon thereafter as the party killing may meet with the party killed after having learned of such insulting conduct." [5] Appellant introduced testimony tending strongly to show that deceased and his wife had been guilty of adultery, if it did not conclusively show that fact; yet the evidence and all the evidence would tend to show that this was with the connivance and consent of his wife. As said in Garrett v. State, 36 Tex. Cr. R. 230, 36 S. W. 454, the conduct need not be such as to cause offense to the female herself, and in a case like this, where it is shown that the wife is equally at fault with the deceased, it ought to be made clear to the jury in the charge that, even though the wife takes no offense, and the conduct is no offense to her, yet, if the conduct is such as to be an insult and outrage against the husband, adequate cause would exist. [6] Appellant testifies to a course of conduct continuing from April until the homicide, at one time appellant becoming so incensed at the conduct of deceased and his wife as to cause him to force his wife to leave home, and when she returned, although she agreed to cease all relations with the deceased, yet, if what appellant says is true, he witnessed deceased attempting on two occasions to induce her to renew such relations, the last time being when he killed him; and if appellant believed their conduct had been improper, and he had condoned the past, yet if he was caused to believe, and in fact did believe, that deceased was endeavoring at the time he shot to have the relations renewed, this would be such insult to him, if it caused anger or resentment, as would reduce the offense to manslaughter. Even though deceased had not attempted to renew the relations, the matter would be real to him if he so believed from the acts of deceased, and the charge should be so framed as to so inform the jury. Jones v. State, 33 Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. Rep. 46; Messer v. State, 43 Tex. Cr. R. 97, 63 S. W. 643; Canister v. State, 46 Tex. Cr. R. 223, 79 S. W. 24; Bays v. State, 50 Tex. Cr. R. 551, 99 S. W. 561; Gillespie v. State, 53 Tex. Cr. R. 168, 109 S. W. 158. In Miles v. State, 18 Tex. App. 168, the court discusses the principles underlying this character of case, and without quoting therefrom we Without taking up each paragraph of the charge on manslaughter and the objections urged thereto, we simply say that appellant is correct in his contention that it does not present the law as applicable to the facts of this case. An act of adultery is shown, and yet the court does not tell the jury that this, in law, is adequate cause. It may be the court did not do so because appellant does not testify that he knew the act had occurred, but appellant says that after Dillehay had told him about deceased going to Dallas as soon as his wife had gone there he believed it as firmly as if he had been present and witnessed it; and, while he may be said to have condoned the act by agreeing to continue to live with her, yet, if the deceased subsequently did acts which led him to believe, and he did believe, that deceased was endeavoring to have the relations renewed, and he killed him while he was engaged in such an act, the adequate cause of the adulterous act would become a part and parcel of the act when deceased was attempting to have the relations renewed. As said before, there is but one theory upon which the state would be entitled to a verdict for a graver offense than manslaughter, and that is that appellant had come in contact with deceased since the adulterous conduct, and he did not act at that time, and deceased at the time he was slain was not engaged in conduct which would lead appellant to believe that he was then endeavoring to renew such relations with his wife. The case was not presented to the jury from this standpoint, but a jury under the charge was authorized to convict of murder, even though they might have believed that it thus appeared to appellant. The court should tell the jury that adultery with the wife is adequate cause, and, if appellant did not know of the adulterous relations, yet the conduct of the parties was such as to lead him to believe that such relations existed, and deceased was endeavoring at the time to have the relations renewed, or it so appeared to defendant, and this rendered the mind of appellant incapable of cool reflection, he would be guilty of only manslaughter. As appellant was found guilty of murder and given ten years in the penitentiary, and the law of manslaughter was not correctly applied to the facts in the case, this will necessitate a reversal of the judgment; and, as the case will be reversed, we will call attention to another matter. [7] As the wife of appellant was introduced as a witness, and she admitted the adulterous relations, the state on cross-examination was and should have been permitted to prove her statements to the county attorney immediately after the homicide, when she told him that she and the deceased had been guilty of no improper conduct. This was legitimate cross-examination. But the |