And that, as our United States Court of Appeals has said, was his right whether he specifically requested it or not. Kinard v. United States, 68 App.D.C. 250, 96 F.2d 522, citing Kreiner v. United States, 2 Cir., 11 F.2d 722. State, etc., Ins. Co. v. York, 4 Cir., 104 F.2d 730; Cincinnati, N. O. T. P. R. Co. v. Francis, 187 Ky. 703, 220 S.W. 739; Dowdall v. Gilmore Oil Co., 18 Cal.App.2d 1, 62 P.2d 1051; McKinney v. Carson, 35 Utah 180, 99 P. 660; Memphis St. R. Co. v. Newman, 108 Tenn. 666, 69 S.W. 269; Mentz v. Omaha, etc., Ry. Co., 103 Neb. 216, 170 N.W. 889, 173 N.W. 478; People v. Egan, 331 Ill. 489, 163 N.E. 357; People v. Gallagher, 107 Cal.App. 425, 290 P. 504; Rowell v. Town of Vershire, 62 Vt. 405, 19 A. 990, 8 L.R.A. 708; Stapleton v. State, 56 Tex.Crim. 422, 120 S.W. 866; State v. Manns, 48 W. Va. 480, 37 S.E. 613; State v. Robichaux, 165 La. 497, 115 So. 728. To the same effect are a number of cases, including State v. Decker, 321 Mo. 1163, 14 S.W.2d 617, 620, which held that defendant was entitled to instructions on the "law of the case" even though no specific instruction was offered at the trial.
O. Dickens, for appellant. — On question of refusing defendant's special charge: Freeman v. State, 52 Tex. Crim. 500, 107 S.W. Rep., 1127; Stapleton v. State, 56 Tex. Crim. 422, 120 S.W. Rep., 866; Wheeler v. State, 56 Tex. Crim. 547, 121 S.W. Rep., 166; Lee v. State, 55 Tex. Crim. 379, 116 S.W. Rep., 1153; Evans v. State, 55 Tex. Crim. 649, 117 S.W. Rep., 167; Mattison v. State, 54 Tex. Crim. 514, 114 S.W. Rep., 824; Anderson v. State, 34 Tex. Crim. 546. On court's failure to charge on aggravated assault: Palmer v. State, 47 Tex.Crim.
Warren on Homicide, Vol. 2, Sec. 210, p. 492. We copy the first headnote in the case of Stapleton v. State, 56 Tex.Cr.R. 422, 120 S.W. 866: "Upon trial for murder where the defendant was convicted for murder in the second degree, the court erred in excluding testimony to the effect that defendant's brother conveyed the information to the defendant that the deceased had struck his mother and had mistreated him. If defendant was informed and believed that the deceased had struck his mother it would be adequate cause requiring a charge upon manslaughter; besides, such testimony was of a mitigating character, and was not self-serving, and accounted for defendant's presence at the scene of the difficulty." See also, Wharton's Criminal Evidence, Vol. 1, Sec. 288, p. 377; Burnam v. State, 61 Tex.Cr.R. 51, 133 S.W. 1045; Jeffries v. State, 9 Tex. App. 598.