This case was affirmed at a previous term of this court, and now comes before us on motion for rehearing.
Most of the questions raised by appellant are matters that were passed upon by us in the former opinion of this case. After a careful review of the record, we do not deem it necessary to review any of the insistences of appellant save and except the following:
Appellant calls the attention of the court to the fact that the former opinion stated that appellant was convicted of manslaughter. Re-examination of the record shows that in this statement we were in error. The former conviction was for the offense of murder in the second degree, as appellant insists, with a punishment of five years.
Appellant further insists the court erred in holding that the trial court committed no error in its charge upon manslaughter, and in failing to affirmatively present the issues raised by the evidence, and especially in holding that the following charge on manslaughter was not erroneous: "If you believe from the evidence, beyond a reasonable doubt, that the defendant, with a deadly weapon, 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 of death or serious bodily injury, did shoot with a pistol and thereby kill Will Brandon, the deceased, as charged in the indictment; you will find the defendant guilty of manslaughter, and assess his punishment for any term not less than two nor more than five years." Appellant insists that this charge, by the use of the word "transport" interpolated between the words "sudden passion" imposes a test of manslaughter more onerous than the statute and a degree of passion greater than required by law. Fury and frenzy of passion is made the criterion for manslaughter in lieu of the sudden passion as defined by the statute. To support appellant's contention he cites us to the case of Kannmacher v. State, 51 Tex.Crim. Rep.. This decision supports appellant's contention. It is there held that the charge on manslaughter, like the one under consideration, was error, and the following statement in that connection appears in the Kannmacher opinion: "The court requires the intent to kill to be formed in `a sudden transport of passion' on adequate cause. This is not the law, but if the mind is excited and not capable of cool reflection from some adequate cause, it is none the less manslaughter, notwithstanding the passion may not be a transport of passion. This character of vice often occurs in charges, no doubt superinduced by the fact that the printed charges used by the judges contain this error, and we have had occasion more than once to reverse cases on this account, and we again call attention to the incorrectness of this character of charge, and in any case *Page 330 where it is given and calculated to work injury, it will operate a reversal. In this particular case, we can not say that it did not operate to the prejudice of the appellant, he was convicted of murder in the first degree, and in applying the law to the facts, the jury were instructed that they were only authorized to convict appellant of murder in the second degree if the intent to kill was formed in a `sudden transport of passion.' It may be that appellant's mind was excited by passion and the jury might have believed under a proper charge that it was so influenced, while at the same time they might not have believed that he was laboring under a sudden transport of passion. This was placing on appellant a greater burden than the law authorizes." In deference to this decision and appellant's strong argument in this case, we have anew reviewed all the authorities on this question in the light of the argument and decision last quoted, and must say that neither the decision nor appellant's position is correct; that is to say, the use of the term "transport of passion" did not nor could it have injured appellant. The printed charge, as stated in the opinion, uses the phrase, and probably has caused many other courts to adopt same, but we hold it was not error. The charges are in strict consonance and accord with the decisions of this court that have long since become precedents approved by this court. In the case of Kemp v. State, 13 Texas Crim. App., 561, we have a case wherein Judge T.L. Nugent, one of the most illustrious judges and jurists that has ever adorned the bench of Texas, wrote an admirable charge embodying nearly all of the phases of homicide, and on page 562 of said volume, in applying the law of manslaughter, he uses the following language: "To apply the foregoing principles of law to this case, if Dan Bogan and F.A. Smith became engaged in a personal difficulty or combat, however brought about, and Smith, by reason of superior physical strength on his part, or of drunkenness on the part of Bogan, or by any other means, obtained greatly the advantage of Bogan in such difficulty, and if the defendant was Bogan's friend or companion, and in a transport of passion or excitement engendered by the difficulty and its attending circumstances, joined in and made himself a party to the difficulty, and during its further progress, while his mind by reason of such passion or excitement was incapable of cool reflection, shot and killed Smith; or if, prompted by a sudden impulse of friendship for Bogan, or of resentment at injuries inflicted or about to be inflicted on him, the defendant made himself a party to such difficulty under circumstances showing neither deliberation nor reflection, and afterwards, during the further progress of such difficulty, at a time when from mental agitation or excitement he was incapable of comprehending and contemplating the consequences of his acts, shot and killed Smith; or if the defendant entered into such difficulty under the immediate influence of any other sudden, *Page 331 rash, inconsiderate impulse, passion or excitement, and, during the further progress of the difficulty, before his feelings had time to cool, shot and killed Smith; in either case from such killing the law will imply malice, if the same was neither manslaughter, nor justifiable homicide as explained in succeeding instructions; and if you believe from the evidence that the defendant did, in Hamilton County, and State of Texas, on or about the second day of May, A.D. 1881, unlawfully shoot and kill the said Smith, under circumstances from which the law will imply malice as above explained, and should further believe from the evidence that such killing was neither manslaughter nor justifiable homicide as defined and explained in succeeding instructions, you will find him guilty of murder of the second degree, and assess his punishment at confinement in the penitentiary for any period not less than five years." This was a charge on murder in the second degree, it is true, and not a charge on manslaughter, but Judge Willson, in delivering the opinion of the court, expressly approved the charge on murder in the second degree, in the following language: "We are unable to perceive any material error in the very able and lucid charge of the court. In our opinion it is a comprehensive, correct and plain exposition of the law applicable to every phase of the case as made by the evidence. It is substantially the same charge which was before this court on the former appeal in this case, and which, after a careful investigation, was pronounced by this court unobjectionable." If it was not error for a charge to contain the phrase "sudden transport of passion" in a charge on murder in the second degree, certainly it could not be error to incorporate such a clause in a charge on manslaughter. As late as the case of McLin v. State, 48 Tex.Crim. Rep., a charge in almost the exact words on murder in the second degree was approved by this court. The usual charge, in reference to manslaughter, says that if appellant killed the deceased while laboring under anger, rage, sudden resentment or terror which renders his mind incapable of cool reflection, etc., he would be guilty of manslaughter. We hold that a sudden transport of passion is synonymous with that condition where the mind is rendered incapable of cool reflection. If a party's mind by anger, rage, sudden resentment or terror is rendered incapable of cool reflection, then it is in a transport of passion. The word "transport" merely means, in the connection here used, to carry beyond; he is transported beyond the realm of reason; he is incapable of cool reflection. To say a man is transported beyond reason is certainly synonymous to saying his mind is incapable of reason, and if passion transports him beyond reason, then he is incapable of cool reflection. If he is incapable of cool reflection, then clearly he is transported by passion. In other words, the Kannmacher case is erroneous in holding that it puts an unwarranted limitation upon the mental condition necessary to reduce the killing to manslaughter. *Page 332 The rule on murder is thus stated in the case of McCoy v. Share,25 Tex. 33: In defining the proof necessary to constitute express malice, the following are necessary requisites: (1) The slayer must be of sedate, deliberate mind. He must be sufficiently self-possessed as to comprehend and contemplate the consequences of his acts. His acts must not be the result of a sudden, rash, inconsiderate impulse or passion. (2) The design formed must be to kill the deceased, or inflict some serious bodily harm upon him. This would indicate that the malevolence must be directed towards the deceased as its object. (3) Malice of all kinds must be inferred, because it consists in a quality or state of the mind, either actual or imputed. Its actual existence may be manifested by external circumstances, from which it may be reasonably inferred. The evidence of such malice must arise from external circumstances, as lying in wait, menacings, former grudges, deliberate compassings, and the like, which are various, according to variety of circumstances. These external circumstances indicating the design, may transpire at the time of the killing, as well as before that time. However sudden the killing may be, if the means used or manner of doing it, or other external circumstances attending it, indicate a sedate mind and formed design to kill, or do great bodily injury, it will be upon express malice. Therefore, if the killing takes place suddenly, if the means used and the manner of doing it and other external circumstances indicate a sedate mind and formed design to kill, it is murder, and all murder not of the first degree is murder of the second degree. Judge Willson, delivering the opinion of the court in the case of Turner v. State, 16 Texas Crim. App., 378, uses the following language: "In Harris v. State, 8 Texas Crim. App., 90, implied malice is thus explained: `When the fact of unlawful killing is established and there are no circumstances in evidence which may tend to establish the existence of express malice, nor which may tend to mitigate, excuse or justify the act, then the law implies malice, and the offense is murder in the second degree.' This definition has been repeatedly approved by subsequent decisions of this court."
Now, reverting to appellant's question, we have presented to us the proposition as to whether or not a charge on manslaughter which contains the phrase complained of, to wit: a sudden transport of passion, puts an unwarranted limitation upon his right to a manslaughter verdict. We say no. So we hold that the charge of the court on manslaughter is not erroneous, but correct, and certainly was not calculated under article 723 of the Code of Criminal Procedure of this State to injure the rights of appellant. This last proposition is beyond cavil. We think the first is also; that is, the charge is accurate as an original proposition, and then if not, that it was not calculated to injure the rights of appellant. The charge complained of on murder in the second degree has been *Page 333 approved by this court repeatedly. See Neyland v. State, 13 Texas Crim. App., 536; Turner v. State, 16 Texas Crim. App., 378; Bright v. State, 10 Texas Crim. App., 70, wherein this court approved a charge of the present Chief Justice of the Supreme Court, Judge R.R. Gaines. See also Kemp v. State, supra, and other authorities too numerous to mention.
We accordingly hold that appellant's motion for rehearing should be overruled, and it is so ordered.
Overruled.