1. Murder — Murder of Second Degree and in Manslaughter — Distinction.
The state of mind in a killing upon implied malice, and manslaughter, is the same. The distinction is, that in murder of the second degree the state of mind is such as has been engendered without adequate cause; in manslaughter it is such as has been produced by an adequate cause.
2. Same — Charge.
On a trial for murder, where the court has correctly defined implied malice, in connection with murder in the second degree, and correctly defined adequate cause in connection with manslaughter, it is hardly presumable that the jury could have been misled by a failure to define adequate cause immediately in connection with the charge on murder in the second degree; and especially so as the charge authorized them in terms to look to any other portion of the charge for a definition of adequate cause.
3. Same — Conspiracy — Provoking Difficulty — Self-defense.
On a trial for murder, where there is evidence tending to establish a conspiracy between defendant and another party to provoke a difficulty with deceased, for the purpose of inflicting death or serious bodily injury upon him. Held: That a charge of court was required which instructed the jury, that if they believed such conspiracy existed, and that the parties armed themselves, and provoked the difficulty with the purpose of inflicting death or serious bodily injury, and that in pursuance of said conspiracy they did kill deceased, the defendant would be guilty of murder, notwithstanding he may have slain deceased in self-defense after provoking the difficulty; and upon such state of facts a charge to the above effect, and which also submitted the converse of the proposition in favor of defendant, is correct.
4. Same — Imperfect Self-defense — Manslaughter.
On a trial for murder, where the charge of the court, in one portion, correctly submits the issue of self-defense, another instruction is not an abridgement of the right of self-defense which instructs the jury that if defendant armed himself and went upon deceased's premises for the purpose of provoking a difficulty, but with no intention to kill or do serious bodily injury to deceased; but did, by his insulting conduct and abusive language, provoke deceased to attack him; and, in resisting such attack, he killed deceased, then, while he would not be, wholly justified on the ground of self-defense, he would be guilty of no higher offense than manslaughter. Nor was such charge misleading, though it would have been better, perhaps, had it further instructed the jury, in that connection, as to the particular character and purpose defendant may have had in provoking the difficulty.
5. Murder in the Second Degree — Evidence Sufficient.
See, evidence summarized in the opinion, which the court holds amply sufficient to establish, at the least, murder in the second degree.
HENDERSON, JUDGE.
Appellant was convicted of murder in the second degree, and his punishment assessed at thirty-seven years in the penitentiary, and he prosecutes this appeal. The court charged upon murder of the first and second degrees, and manslaughter, and also gave a charge on self-defense. The only exceptions taken in the case are to the charge of the court, and we will discuss such as are necessary to a disposition of this case. The court gave the following charge, which is assigned as error: "If you believe, from the evidence, beyond a reasonable doubt, that the defendant, acting alone or as a principal with Stanley Rogers, with a deadly weapon or instrument, reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion, aroused without adequate cause, and not in the defense of himself against an unlawful attack, reasonably producing a rational fear or expectation of death or serious bodily injury, with the intent to kill, did; in Lamar County, Texas, * * * unlawfully shoot and kill Mrs. Bayed Hickman, * * * you will find him guilty of murder in the second degree, and assess his punishment," etc. Appellant claims that this charge is erroneous, because it does not define, in that connection, what "adequate cause" is; and it is insisted, on this question, that the definition of implied malice is incomplete. As we understand it, the state of mind, in the killing upon implied malice and manslaughter, is the same. In the one instance, the state of mind is engendered without adequate cause, while, in the other, the state of mind is produced by an adequate cause. If the court had failed anywhere to instruct the jury further as to adequate cause, there might be some basis for the contention of the appellant. The court had previously defined implied malice as a homicide, "in which an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, nor tend to mitigate, excuse, or justify the act, then the law implies malice, and it is murder in the second degree." The court further gave a charge on manslaughter, in which he gave a definition of adequate cause. By the court's charge, the jury were authorized to look to any other portion of the charge for a definition of adequate cause, and it is hardly presumable that the jury could have been misled by the failure of the court to define adequate cause immediately in connection with the charge on murder in the second degree, or that they would not look to other portions of the charge to ascertain what the court meant by adequate cause. It occurs to us that the contention of the appellant is not only untenable, but is hypercritical.
Appellant excepted to the charge of the court on the question of conspiracy. The court, having given a charge on the theory that the appellant appellant called for the husband of the deceased to come out. Deceased told him that he was not able to come out, and was drunk, in bed, asleep, and could not come out, and told him to go home, and come back in the morning, and he could see him, and stay all day if he wanted to. The defendant said he was going to sit on the fence until daylight, or have him there. The deceased then told him to leave, and the defendant then denounced and abused her, calling her all manner of vile epithets. She then came out of the house, and told him she would not take such abuse. She picked up the axe, which was lying in the yard in front of the house, and went towards the fence, where appellant and his companion, Rodgers, were sitting, and struck with the axe at the appellant; and he jumped off the fence, and shot. They then left, the deceased staggered back, and fell dead. As they departed, the defendant said: "If some of you don't mind, you will get the same play." These are about the circumstances detailed by a number of witnesses on the part of the State, and there is no material variance as to the main facts as stated by the appellant's witnesses. How an honest and intelligent jury could have found him guilty of a less offense than murder in the second degree, it would be difficult to understand. The killing, under such circumstances, could neither have been manslaughter nor self-defense. The judgment of the lower court is affirmed.
Affirmed.
[NOTE. — A motion for rehearing, filed by appellant, was overruled without a written opinion. — Reporter.]