The only question necessary to discuss on rehearing is appellant's claim that the court below should *Page 454 have submitted manslaughter. In his objections to the court's charge he based this on the testimony specifically of Mrs. Witty, his mother, Mrs. McDonald, his sister, Barron, Huff, Bobinger and Corley, therein saying: "All of whom, in effect, testified to delusions on the part of the defendant that the deceased was seeking to take his mother's life and life of other members of his family, including himself, and there was imminent danger of his doing so; and that his mother was constantly complaining to him and asking him to take some action in the matter of the association of deceased with his brother, and that he was in a highly excited frame of mind about the situation during the entire day of the homicide, and his mind was in a condition that he could have been guilty, even though sane, of any higher offense than manslaughter." In his motion for rehearing on this point he claims: "Our contention being that where insane delusions enter into a case through the evidence, those delusions are in fact realities with the person affected, and may, if sufficient, constitute adequate cause equally so as if the delusions had a real existence, — that under the law the accused is to be charged upon the same basis as if the insane delusions entertained by him existed in fact. And so, if these delusions, taken as a whole, were of such a character as had they in fact existed they would have raised the issue of manslaughter, then manslaughter is in the case and the jury should have been so instructed and told that in passing upon this issue they would consider any insane delusions entertained by the accused as existing realities; and that if under all the facts and circumstances of the case they found adequate cause, etc., they would not find the defendant guilty of a higher offense than manslaughter." And contends: "And so, in this case, the jury, under the general charge of the court, could very readily have decided that though the defendant was not sufficiently insane as to be irresponsible in law for his actions, yet that he did entertain sufficiently insane delusions to partially dethrone his reason and render him incapable of cool reflection, and that these delusions were such that if they were in fact true as he, under the law, had a right to have them regarded in passing on his case, they would in law amount to adequate cause."
We have thus given in full on this point his objection to the omission of the court's charge and his contention on rehearing.
He asked no special charge whatever on manslaughter. He did ask, and the court at his instance gave his special charges Nos. 3, 9, and 11, copied in full in the original opinion herein. By them, and especially by No. 11, he cut himself off from any charge on manslaughter, for even if he had been entitled thereto, for by them he had the court specifically tell the jury in No. 3, that "the burden is on the State to prove beyond a reasonable doubt that the defendant was at the very time he committed the act charged sufficiently sane and free from mental diseases and delusions as to render him amenable to the law," and in No. 9, "The burden of proof is on the State to prove by a preponderance of the evidence and beyond a reasonable doubt, that at the time of said act, the defendant's mental condition was such that he did know the *Page 455 character of his act, and its consequences, and had sufficient will power to refrain therefrom, and if it has failed to do so, you will return a verdict of not guilty," and in No. 11:
"If the defendant entertained the insane delusion that the deceased had an immediate design upon his life, or the life of his mother or brother, and acting under any such delusion killed the deceased, in the belief that it was necessary to save his own life, or the life of his mother or brother, he would not be guilty under the law, and in this case, unless the State has shown by evidence beyond a reasonable doubt that he did not entertain any such insane delusion at the time he killed the deceased (if he did kill her), you will find the defendant not guilty."
The court having told the jury under those circumstances to acquit, he should not then have told them to convict him of manslaughter.
But even if appellant had not cut himself off from a charge on manslaughter, the evidence in no way showed nor tended to show "adequate cause." As said by this court through Judge Davidson in Davis v. State, 70 Tex.Crim. Rep., 155 S.W. Rep., 546, it is "an uncontroverted proposition that two things are requisite to constitute manslaughter: First, adequate cause; second, existing passion," and as we said in Lamb v. State,75 Tex. Crim. 75: "Neither of these, without the other, is sufficient to raise manslaughter. And the passion must be caused by what deceased does or says. The statute says (P.C., art. 1128) `manslaughter' is voluntary homicide committed under the immediate influence of sudden passion, arising from an adequate cause. And, defining `under the influence of sudden passion' (art. 1129) says, it means: (1) That the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation; (2) The act must be directly caused by the passion arising out of the provocation; it is not enough that the mind is merely agitated by passion arising from some other provocation, or provocation given by some other person than the party killed; and then (3) whatever the passion is it must be an emotion of the mind rendering it incapable of cool reflection.
"By `adequate cause' (art. 1130) is meant such as would commonly produce a degree of such passion or emotion in a person of ordinary temper sufficient to render the mind incapable of cool reflection. Art. 1131 expressly states what are not adequate causes, and the next article expressly states what are. Art. 1137 specifically says, in order to reduce a voluntary homicide to manslaughter, it is necessary, not only that adequate cause existed to produce the state of mind referred to, but also that such state of mind did actually exist at the time of the homicide. . . . McKinney v. State, 8 Texas Crim. App., 626; Johnson v. State, 74 Tex.Crim. Rep., 167 S.W. Rep., 733, and cases therein cited and reviewed; Wilson v. State,71 Tex. Crim. 399, 160 S.W. Rep., 83, and cases therein cited and reviewed; Kelly v. State, 68 Tex.Crim. Rep., 151 S.W. Rep., 317, 151 S.W. Rep., 304; Treadway v. State, 65 Tex. Crim. 208, 144 S.W. Rep., 655, and cases cited and reviewed; Johnson v. State, 67 Tex. Crim. 441, *Page 456 149 S.W. Rep., 165. In the opinions in these cases just above cited many of the older decisions of this court are cited and discussed. We deem it unnecessary to collate all those and the many others to the same effect. We said in Johnson v. State, supra, 74 Tex.Crim. Rep., 167 S.W. Rep., 733:
"`In Treadway v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 655, and Kelly v. State, 68 Tex.Crim. Rep., 151 S.W. Rep., 304, supra, we have recently had occasion to review the decisions of this State on this question, and it has always been held that if there be no legal "adequate cause" to produce a state of mind, such as anger, rage, sudden resentment, or terror, even if such state of mind does exist, the offense is not manslaughter but murder in the second degree.'" Now as we understand the testimony of said witnesses, Mrs. Witty, Mrs. McDonald, Barron, Huff, Bobinger and Corely, it was directed to prove appellant was insane, and his claimed insane delusions at the time and before he killed deceased, and not to prove adequate cause, nor sudden passion at that time by anything deceased then said or did. We have again reviewed their testimony. It is too lengthy and we think unnecessary to copy herein.
As we understand from appellant's brief and motion for rehearing he contends, in effect, that if appellant was partially sane and partially insane because of his claimed delusions, or "that the passing from sanity into insanity is as the passing from day to night and that there is no definite point at which you may say that a man is sane or insane," that might constitute adequate cause, and he would therefore not be guilty of murder, but of manslaughter only, and relies on Judge Henderson's opinion in Merritt v. State, 39 Tex.Crim. Rep., wherein he cites and quotes 1 Wharton Cr. Law, 71. We think he misapprehends said decision. In that case appellant defended on the ground of insanity, claiming that he, Merritt, killed Brown under the insane delusion that a mob was after him to kill him, and Brown was the leader of that mob. He sought to introduce evidence that Brown was the leader of the mob. The trial court permitted him to prove his delusion that a mob was after him, but refused to let him prove, as a part of his delusion, that said Brown was its leader, restricting the proof to "merely referring to the leader of the mob as a `certain person.'" Judge Henderson said: "The court (below), however, seems to have concluded that the insane delusion could be proved, and a most important feature omitted therefrom. That is, according to the court's idea, it was entirely competent to prove that appellant was deluded as to a mob in pursuit of his life, but it could not be shown in connection therewith who composed the mob. In the view we take of this question, we fail to see of what avail all the proof offered by appellant concerning the mob in pursuit of his life would be to him, if he was not permitted to show who composed that mob. The very essence of appellant's delusion was that the mob was led on by the deceased, if he, indeed, was not the entire mob, and that under such belief he slew him; yet we have seen from the bills of exception above stated that appellant was denied *Page 457 this proof. In our opinion this was material error on the part of the court." It is true it was held in that case that "a delusion is a form of insanity." The trial court in this case also expressly so held, and charged specifically at appellant's instance if that was true to find him not guilty. The court in this case admitted all evidence offered by appellant on that subject and excluded none.
This court, in Cannon v. State, 41 Tex.Crim. Rep., said: "If appellant at the time he slew deceased was laboring under a delusion, and such delusion deprived him of the capacity to know right from wrong, he was insane. There is no grade of delusion that mitigates crime. In other words, a party can not be half insane. He is either sane or insane. As aptly said: `Insanity never operates as mitigation of a homicide, as it goes only to the punishment, and not to the character of the act itself; and its only effect is to exempt the slayer from the punishment prescribed for the homicide, without exonerating him from the charge of committing it.' 9 Am. Eng. Ency. of Law, 615. The rule is stated in United States v. Lee, 54 Am. Rep., 293, as follows: `That there is no grade of insanity sufficient to acquit of murder, but not of manslaughter; but above and beyond that the prayer is inconsistent with his, is incongruous, and radically vicious. It rests upon the idea there is a grade of insanity not sufficient to acquit the party of the crime of manslaughter, and yet sufficient to acquit him of the crime of murder. The law does not recognize any such discretion as that in the forms of insanity. The rule of law is very plain that, in order that the plea of insanity shall prevail, there must have been that mental condition of the party which disabled him from distinguishing between right and wrong in respect to the act committed.' This is to say, in another way, that a person can not be half insane. Spencer v. State, 69 Md. 28, 13 Atl. Rep., 809; 3 Whitthaus B. Med. Jur., p. 421."
The motion for rehearing is overruled.
Overruled.