ON REHEARING. June 26, 1912. The appellant, by and through his able attorneys, has presented and urged with much vigor and force that the court in the original opinion herein erred in not sustaining his contentions against the charge of the court on manslaughter. His brief and argument in support of the motion is very lengthy and he cites and quotes from many decisions of this court. We have carefully reconsidered the case, the appellant's brief and argument and the cases *Page 538 cited by him. There has been nothing presented to cause us to change our views as expressed in the original opinion, and we adhere thereto.
In passing on the charge of the court in any case the whole of it must be considered, and it must also be considered in connection with the testimony.
It is also essential to know what the facts were, and what the court had under consideration and discussion, in determining the application of a previous decision of the court cited to sustain a given proposition. The general principles of law, and the statutory provisions, do not change; or rather, are not changed in the decision of any case, but the application of those principles and of the statutes to the subject under investigation may be applicable in one case, and wholly inapplicable in another. This must always be kept in mind, when a case is cited as authority.
When we consider these principles and rules, it is our opinion that many of the cases and excerpts therefrom cited and quoted by appellant in his brief and argument, have no application to this case. We deem it unnecessary to take up and distinguish them at this time.
Appellant lays particular stress against the original opinion herein, in sustaining the charge of the lower court wherein the court quoted the very definition of manslaughter in article 1128, Penal Code, that "manslaughter is voluntary homicide committed under the immediate influence of sudden passion;" and again, wherein the charge quoted article 1129, Penal Code, of the very statutory definition of what is meant by, "under the immediate influence of sudden passion," this provision, "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." And he contends that as these articles of the Code were originally enacted in 1856, the amendment thereto in 1858, by adding what is now article 1133, as follows: "When it is sought to reduce the homicide to the grade of manslaughter, by reason of the existence of the circumstances specified in the fourth subdivision of article 1132 of the Penal Code, it must appear that the killing took place immediately upon the happening of the insulting conduct, or the uttering of the insulting words, or so soon thereafter as the party killing may meet with the party killed, after having been informed of such insults," modified, or in effect, repealed the "sudden" passion in article 1128, and also that, "provocation must arise at the time of the commission of the offense" in 1129, when applied to a killing caused by insulting conduct or words, etc. The fourth subdivision of article 1132, above referred to, is in that part of the manslaughter statute which defines what are adequate causes as follows: "Insulting words or conduct of the person killed towards a female relation of the party guilty of the homicide." We believe there is nothing in this contention by appellant. All the articles of the Code as they now exist on the subject of manslaughter and as now arranged *Page 539 have been enacted and reenacted time and time again by the Legislatures of Texas. If it had been the intention of the Legislature, as contended by appellant, to do away with "sudden passion" as one of the necessary elements of manslaughter when the killing is claimed to have occurred, because of insulting words or conduct of the person killed towards the female relation of the party killing, the Legislature in some of these revisions of the Code, or in some independent Act would have specifically and clearly said so and enacted. Besides, when we take into consideration the whole of the specific language used in article 1133, to the effect that when it is sought to reduce a homicide to manslaughter because of insulting words or conduct towards a female relative, "it must appear that the killing took placeimmediately upon the happening of the insulting conduct, or the uttering of the insulting words, or so soon thereafter as the party killing may meet with the party killed after having been informed of such insults," and especially the whole manslaughter statute, it repels the idea that the slayer can nurse his wrath from year to year, or month to month, or week to week, or even day to day, and then claim that because he did not meet the insulting party until after the lapse of these years, or months, or weeks, or even days, and then killed him, he is guilty of manslaughter only. Even if the killing occurred on the first meeting, this meeting can not be put off for years, or months, or weeks, or even days and he then kill the insulter and be guilty of only manslaughter. The statute and the Legislature enacting it never intended that any such construction should be put on this language. On the contrary, to take the whole context and all the language, and the full statute, it clearly means that the killing must take place within some reasonably short time or immediately after the insulting words or conduct are communicated to the slayer, and not that the slayer shall wait for days, or weeks, or months, or years to wreak his vengeance.
"The statute lays the limitation as to time, and we can not legislate. While public policy recognizes, on the one hand, the fraility of human temper, it also demands that the exceptions to the law of `life for life' should be limited and closely scrutinized.
"The law recognizes the uncontrollable power of sudden passion as the cause of homicide, when this sudden passion arises upon a provocation which would commonly or naturally arouse the passion or sudden resentment of a person of ordinary temper to such a degree as to render the mind incapable of cool reflection. It is to be observed that this passion is sudden, uncontrollable andflaming up from the injury or insult, and the homicide must occurbefore there is reflection or composure. Our code defines and describes the character of the passion that reduces homicide to manslaughter as `sudden passion.' No time is allowed, except in the cases mentioned in article 1132, for brooding over the wrong, or for compassing and preparation; *Page 540 for then the homicide becomes deliberate, premeditated, and malicious, though the provoking cause be an adequate cause.
"But the code has, in cases . . . of insulting words and conduct to female relatives, extended the time in which homicide, when committed, may still be manslaughter. In such cases the law requires the homicide to occur as soon as . . . the party killing may meet the one giving the insult, after being informed thereof. If not done at such time, the injury may become evidence of malice and preparation to kill; evidence of premeditation and deliberation." . . . And we say that the time even of this first meeting can not be put off for years, or months, or weeks, or under some circumstances, for even days.
"The law made a further concession to human frailty when it divided murder into two degrees. . . . Under our code, a homicide committed in sudden passion, upon an inadequate cause, is murder in the second degree. . . . But it is to be observed it must be the passion that strikes; for if the slayer broods over his injury (or insult) and deliberately forms the design to kill, and prepares for it, the presence of passion at the moment of the premeditated homicide can not change its nature. The law makes no allowance for the passion of revenge. While it concedes something to the instinctive, unreasoning passion, that blindly strikes, it has no sympathy with the vindictive, calculating spirit that deliberately premeditates and maliciously acts." (Italics ours.) Ex parte Jones, 31 Tex.Crim. Rep..
In the event the slayer does not meet the insulting party for years, or months, or weeks, or even perhaps days, afterwards, in the meantime nursing his wrath and adding flame to his passion, such conduct and considerable length of time would become most cogent evidence of malice, and it would not be the passionsuddenly aroused which strikes and kills, but it would be thepassion of revenge, in which event the killing would not be manslaughter, but, at the very least, murder in the second degree. Miller v. State, 31 Tex.Crim. Rep.; Massie v. State, 30 Texas Crim. App., 64.
What we have just said above indicates what our opinion is in a case where the killing did not occur until a long time after the slayer was informed of the insulting conduct or words, even though such long deferred meeting may have been the first time after the insulting words or conduct, were communicated.
However, this does not apply in this case, because, as shown in the original opinion herein, appellant acted within such a short period after being informed of the claimed insulting conduct, as to show that if the adequate cause was what aroused his passion it was within so short a time after he heard it as to make such passion sudden, and if the provocation was what aroused his sudden passion and caused his conduct, it was within the reasonable time, or at the time, of the commission of the offense. It will be borne in mind that the *Page 541 court fully and accurately, in connection with this provocation and sudden passion, told the jury specifically to consider in connection therewith all the facts and circumstances in evidence in the case.
We deem it unnecessary to further discuss this or any other question raised by appellant in his motion for rehearing because they were fully and sufficiently discussed and decided in the original opinion.
The motion will be overruled.
Overruled.
Davidson, Presiding Judge, dissents.