Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of fifteen years; hence this appeal. This case was before us on a former appeal and was reversed. The facts therein stated are substantially as proven on the present trial. See Connell v. State, 75 S.W. Rep., 512, 45 Tex.Crim. Rep..
The State proved the dying declarations of deceased, by witness Yarbrough, as follows: "That he heard of deceased being hurt and went over to his house to see him. When witness arrived deceased had been removed from the point outside of his yard into the house and was lying on his bed in the house; his wounds had been dressed by the physicians and deceased was very weak. He called witness to his bedside and asked him to stay with him to the end; and witness told him he would. Deceased then made a statement to witness, and a few minutes afterwards became unconscious and so remained until he died. Defendant objected to the introduction of said statement as a dying declaration because no sufficient predicate had been laid for its introduction; and said objection was overruled, and defendant excepted to the ruling, and said witness was permitted and did testify, over defendant's objection, as follows: `Deceased told me his son John had done it, and that he had no cause for doing it.' And defendant further objected to said evidence because same was not the statement of any fact or facts by deceased, but was merely the statement of the opinion or belief or conclusion of deceased, and because same was incomplete and fragmentary." The court in explaining this bill refers to the evidence as the predicate for the introduction of the testimony; and we think that this was ample. We also hold that the statement by the declarant was admissible. Pearson v. State, 18 Texas Crim. App., 524; Roberts v. State, 5 Texas Crim. App., 141; Sims v. State, 36 Tex.Crim. Rep..
Appellant contends that the court's definition of malice and of implied malice is inadequate. In the former trial appellant was acquitted of murder in the first degree, and consequently no higher degree was submitted than murder in the second degree. The court in defining malice and implied malice instructed the jury as follows: "The distinguishing characteristic of murder in the second degree is implied malice aforethought. Malice aforethought includes all those states of mind under which the killing of a person takes place without any cause which will in law justify, excuse or extenuate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken. Malice in its legal sense denotes a wrongful *Page 262 act done intentionally without just cause or excuse." In its ordinary legal sense, under the definitions, malice denotes a wrongful act done intentionally without just cause or excuse. When applied to murder, malice aforethought is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts done or words spoken. This, as we understand it, is in accord with the authorities. Crook v. State, 27 Texas Crim. App., 198; Martinez v. State, 30 Texas Crim. App., 129; Harrell v. State,39 Tex. Crim. 204; Cain v. State, 42 Tex.Crim. Rep.. Implied malice, where that issue is presented as here, must also be defined. So far no affirmative or substantive definition has been given of this character of malice. The definitions usually given are negative, bounded on the one side by express malice, and on the other with circumstances which mitigate or extenuate the homicide or which reduce it to excusable or negligent homicide. Neyland v. State, 13 Texas Crim. App., 536; McGrath v. State, 35 Tex.Crim. Rep.; Boyd v. State, 28 Texas Crim. App., 137. In the latter case, Judge Willson for the court, assumed to lay down what he considered to be a proper charge on implied malice, to wit: "Implied malice is that which the law infers from or imputes to certain acts. Thus, when the fact of an unlawful killing is established, and there are no circumstances in evidence which tend to establish the existence of express malice, nor which tend to mitigate, excuse or justify the act, the law implies malice. If, therefore, you believe from the evidence that defendant unlawfully killed deceased, and in doing so did not act under the immediate influence of sudden anger, rage, resentment or terror, arising from an adequate cause; that is, such cause as would commonly produce such passion in the degree that would in a person of ordinary temper render the mind incapable of cool reflection, the killing would be upon malice, and he would be guilty of murder in the second degree." As a general proposition, so far as we are advised, where a charge is given on murder in the second degree, and it is given in the negative form, bounded on the one side by murder in the first degree and on the other by manslaughter, which is based on adequate cause, it is the duty of the court to define adequate cause. See Whitaker v. State, 12 Texas Crim. App., 436; Brunett v. State, 12 Texas Crim. App., 521; Neyland v. State, 13 Texas Crim. App., 536; Childs v. State, 35 Tex.Crim. Rep.; Scruggs v. State, 35 Tex.Crim. Rep.; Pollard v. State, 73 S.W. Rep., 953; Thomas v. State, 74 S.W. Rep., 36. In McGrath v. State, 35 Tex.Crim. Rep., which is the only exception called to our attention, the court appears to predicate its opinion on the proposition that there was no adequate cause in the case, and the charge defining adequate cause as in manslaughter was not called for. In the majority of the cases above cited, manslaughter was in the case, and necessarily the distinction between murder and manslaughter was required to be sharply drawn. In some of the cases adequate cause was not defined in connection with the charge on murder in the second degree, but a charge on manslaughter being given *Page 263 in the case, the definition of adequate cause as therein contained was held sufficient — the charge on murder in the second degree contained adequate cause referring to the definition as contained in manslaughter. Here, the jury were instructed that malice aforethought as applied to murder in the second degree, includes all of those states of the mind under which the killing of a person takes place without any cause which will in law justify, excuse or extenuate the homicide. There was here no definition of express malice. And if there was any error it was in failing to give the definition of express malice, so that the jury might be properly informed of the distinction between express and implied malice. No injury could have resulted to appellant on this account, inasmuch as he was acquitted of murder in the first degree. There was no necessity for the court to draw a distinction between murder in the first and second degrees, inasmuch as appellant could have been convicted of murder in the second degree, although the evidence might establish his guilt of murder in the first degree. Fuller v. State, 30 Texas Crim App., 539, and authorities there cited. However, it was necessary for the court to draw the dividing line between murder in the second degree and manslaughter, as that issue was presented in the case. We believe this was adequately done. After instructing the jury upon implied malice, to the effect, "If the killing was in a sudden transport of passion aroused without adequate cause, and not in self-defense, as will be hereinafter defined, and you believe he cut deceased with a deadly weapon, with intent to kill him, he would be guilty of murder in the second degree." In regard to manslaughter the court had already told the jury that implied malice would be inferred when the killing took place without any cause which would in law justify, excuse or extenuate the homicide. (Extenuate in this connection, has the same meaning as mitigate, and refers to a reduction of the grade of the offense as well as to a reduction of the punishment.) In a subsequent instruction of the court defining manslaughter, which embraces a definition of adequate cause and the application of the law on that subject to the facts of the case, there was a sufficient charge on manslaughter, and considering the charge on murder in the second degree and the charge on manslaughter, the jury was properly informed as to the distinction between the two offenses or grades of offense.
Appellant further insists that the court failed to properly instruct the jury in regard to appellant's intent to kill in connection with the charge on manslaughter. It is urged that the jury should have been distinctly told, that notwithstanding they believed the weapon used was a deadly weapon, yet if they believed appellant had no intent to take the life of deceased, and he killed him in a sudden transport of passion without adequate cause, he could only be convicted of manslaughter. In support of his contention we are referred to Thompson v. State, 24 Texas Crim. App., 383; Fitch v. State, 37 Tex. Crim. 500; Perrin v. State, 9 Texas Ct. Rep., 533. While there are some expressions in the first named case, which appear to favor appellant's contention, *Page 264 yet when examined, neither it nor the other cases mentioned support his view. Our statute makes manslaughter voluntary orintentional homicide and all our decisions on the subject so construe it. If there is no intention to take life, there is no manslaughter. This intention may be inferred from the use of a deadly weapon. If the weapon is not deadly, the intention to take life can not be inferred, but must evidently appear; and where the weapon is not of a deadly character, the court should always charge article 717, Penal Code. But we know of no case where this article is required to be given in charge, unless the weapon used was not of a deadly character, such as a club, a stick, or a very small knife. Here the uncontroverted testimony shows that the knife used in inflicting the wound which caused the death of deceased was a dirk knife, the blade of which was five and three-fourths inches long, and about seven-eighths of an inch wide, sharp, pointed, and with a keen, sharp edge on both sides; the blade fixed and rigid to the handle, with a guard between the blade and the handle. The doctor describes the wound inflicted as "on the left arm of deceased — the cut being something like the figure seven — the cut being on the front of the arm between the shoulder and the elbow. The flesh was cut through to the bone. The muscle was cut from the front of the bone to the outside, and then the bar of the 7 was cut down the arm to the bone, about parallel with the arm. The wound extended entirely through the arm to the bone, and then through the flesh, reaching the side of the deceased, and there was a cut about a half inch deep farther down the ribs on his side. This wound was made with the same stroke." He further states that deceased bled to death from the effect of the wound. That after he got there and the binding was taken off his arm, no blood issued from it, showing evidently that the blood vessels were exhausted; that he never rallied from the effect of the wound. It will be seen from the above recitation that the weapon used by defendant was of a deadly character, and that it was used with deadly effect; and under none of the authorities was a charge of the character insisted on by appellant required
Appellant insists that the charge on manslaughter was given in the negative form, when he was entitled to an affirmative charge on that subject; and to support this he cites us to Johnson v. State, 43 Tex. 612. We have examined the charge given in that case, and it is not in point. The charge here given was not subject to the vice therein pointed out. Here, after the definition of manslaughter, the court, in applying the law to the facts, told them, substantially, that, if defendant 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 by adequate cause, as the same is herein explained, and not in defense of himself against an unlawful attack reasonably producing a rational fear or expectation of death or serious bodily injury, did cut with a knife and thereby kill John Connell, deceased, to *Page 265 find him guilty of manslaughter. This, as we understand, was an affirmative presentation of the offense of manslaughter.
It is also complained that the court failed, in its charge to the jury applying the law to the facts, to tell them directly that if deceased in the first instance assaulted appellant and struck him a blow which caused him pain, and his passion was aroused thereby, etc., to find defendant guilty of no higher offense than manslaughter. To sustain this contention we are referred to Warthan v. State, 55 S.W. Rep., 55; Griffin v. State, 50 S.W. Rep., 366. These cases are authority for the proposition that, where the adequate causes are those enumerated by the statute, the jury must be instructed as to these adequate causes. It does not appear in either of said cases that the court informed the jury that an assault causing pain was by law adequate cause to produce passion. Here, however, the court told the jury that an assault and battery causing pain was adequate cause. And further told them, in that connection, that while the provocation must arise at the time of the homicide, they could look to any other circumstance in evidence to enable them to judge of the provocation; and subsequently instructed the jury, if they believed appellant's mind became excited on account of any adequate cause, as before defined, and he was thus rendered incapable of cool reflection, to find defendant guilty of manslaughter. We believe this was sufficient.
Appellant contends that the charge on self-defense was given in the negative form. We do not so read the charge. After defining defendant's rights in that respect, the court properly applied the law to the facts in an affirmative manner.
Affirmed.
ON REHEARING. June 24, 1904.