At a former day of this term this case was affirmed, and appellant has filed a motion for a rehearing in which he insists that in the dissenting opinion, Judge Davidson takes the correct view of the propositions involved. We have carefully gone over the record again, and on the proposition that manslaughter is in the case and should have been properly submitted to the jury, we can not agree. It is unnecessary to again state the facts, for, while Judge Davidson says he can not agree to the statement of facts contained in the opinion of the court, yet, to take the facts as he states them in the dissenting opinion, there is no phase of the testimony which would present the issue of manslaughter, for if, as defendant says, Wagnon raised his gun as if preparing to shoot, this presented self-defense, and not manslaughter, for there is no testimony in the record that defendant was frightened, suddenly enraged, or gives any ground to suppose the theory that he was in that condition of mind upon which manslaughter is predicated. In the case of Massie v. The State, 30 Texas Crim. App., 64, Judge Davidson, speaking for the court, lays down the rule: "There must not only exist the adequate cause coupled with the defendant's knowledge of its existence, but the disturbed condition of the mind and the necessary `passion' must also exist in order to reduce the killing from murder to *Page 131 manslaughter. . . . In the absence of the `passion' that reduces a homicide to manslaughter, the unattended `adequate cause' may become evidence of the most cogent force showing the antecedent malice on the part of the slayer. In such case the `adequate cause' unattended by the necessary `passion' rendering the mind incapable of cool reflection, instead of constituting an extenuation of the crime, may and would become an aggravating circumstance attending the commission of the offense." There is no indication in the testimony that defendant was in a `passion,' but everything indicates that condition of mind upon which murder is predicated, if the defendant is guilty of any offense.
Again, in the case of Miller v. The State, 31 Tex. Crim. 609, in speaking for the court, Judge Davidson said: "The question at last is, what cause, reason or motive actuated the defendant in committing the homicide? It is the settled law of this State, that in arriving at a correct conclusion in homicide cases, the killing should be viewed from the defendant's standpoint; that is, to ascertain as nearly as possible, from the evidence, the reasons and motives which moved or induced the accused to do the killing. It has been held that an unlawful arrest is esteemed in law, a great provocation. If it be conceded that such provocation constitutes `adequate cause,' under our statute then, in order to reduce the killing to manslaughter, `sudden passion' must have existed in the mind of the slayer at the time of the homicide; otherwise, the killing would be murder. Massie v. State, 30 Texas Crim. App., 64; Ex parte Jones, ante, 31 Tex.Crim. Rep.; Ex parte Sherwood, 29 Texas Crim. App., 334; Miller v. The State, 32 Tex.Crim. Rep., 20 S.W. Rep., 1103. Such provocation, in the absence of `sudden passion,' may become evidence of a most cogent character and force, showing malice." If anyone can read the record, even as stated by Judge Davidson in his dissenting opinion, and find any evidence of "sudden passion," or any other emotion of the mind that would reduce the case to manslaughter, it is more than we have been able to discover.
Again, in Ex parte Jones, 31 Tex.Crim. Rep., this court says: "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, and flaming up from the injury or insult, and the homicide must occur before there is reflection or composure. Our Code defines and describes the character of the passion that reduces homicide to manslaughter as `sudden passion.'"
And also Hall v. The State, 33 Tex.Crim. Rep., the following language is used: "The proposition contended for is apparently based on a misunderstanding of the term `malice' as used in law, *Page 132 which does not necessarily involve a vicious and wicked motive, but is applied to any wilful transgression of law. Law is practical. It deals with material facts, rather than with immaterial ones. It therefore regards not so much the act of killing as the particular manner or modes of killing, which must always be alleged and proved. Whart. Crim. Ev., 738. It is from circumstances attending the killing that malice is inferred, without reference to the actual or precise motive, whether of hatred, fear or gain, with which the act was done. In fact, in cases of homicide, motive of any kind is usually shown to throw light upon the condition of the mind at the time when the crime was consummated or determined upon; for the question in every homicide is, what was the condition of defendant's mind? Was it calm and sedate, and with a formed design? and not, what particular motive led to such design? A motive to take life, however powerful, which does not render the mind incapable of cool reflection, can not reduce a deliberate homicide below murder in the first degree. Indeed, if motive is to govern in determining the degree of crime, it would make no difference how deliberately or cruelly the killing was effected, whether by lying in wait, by poison, starving, or torture, which by our Code and by all law is held to be murder upon express malice; and there would be no homicide which might not be reduced to murder in the second degree, or even be at the mercy of cowardice and perjury, and the floodgates of crime thrown wide apart."
In this case the evidence, as quoted in the original opinion or in the dissenting opinion, shows that appellant upon seeing deceased driving up the road, stepped to the side of the road, set one gun down by a tree, with the other in his hands, he saying if they drove on by he did not intend to harm them, or either of them; but when they got near, Wagnon undertook to raise his gun, and when he did, he fired. This evidences coolness, deliberation and a state of mind foreign to any condition upon which manslaughter can be predicated, and, as said by Judge Davidson in the dissenting opinion, we will now say, "We dare say that the reports of this State are such that the dissenting opinion in this case will stand isolated and alone in holding that manslaughter can be predicated upon such a condition of mind as appellant's testimony would indicate." We have searched the books and we can find none. Ward v. State, 59 Tex. Crim. 62; Jirou v. State, 53 Tex.Crim. Rep.; Lentz v. State, 85 S.W. Rep., 1068; Eggleston v. The State, 59 Tex. Crim. 542, 128 S.W. Rep., 1105. And in Canon v. State, 59 Tex. Crim. 398, Judge Davidson, in speaking for the court says: "We are of opinion that the question of manslaughter is not in the case. Appellant makes a clear case of self-defense. The State makes a case of waylaying with antecedent preparations, former grudges and all indications and indicia of murder. If the State's evidence is to be credited, and the jury did believe it, it was a killing upon preparation *Page 133 and lying in wait. The evidence for appellant shows that he met his antagonist unexpectedly, and was informed by him his day of living was ended; that his time was up, and that deceased immediately drew his pistol and fired. We do not believe there are any facts which required the court to charge on manslaughter under this state of case. If appellant's testimony is to be credited, he had a case of self-defense, and the jury, believing his testimony, should have acquitted." This is the last case in which we find our presiding judge drawing the distinction until in the dissenting opinion in this case and in the Canon case and other cases quoted herein his views appear wholly at variance with those now expressed.
Again, it is insisted that the presumption in article 676, Penal Code, should have been given. When the court in his charge tells the jury if "the deceased was in the act of making an unlawful attack upon the defendant with a gun," he should be acquitted, is he not presenting the presumption in as strong language as possible? What is the difference between telling the jury "if deceased made an unlawful assault with a gun, the law presumes he intended to kill, and you will acquit the defendant," and telling them "if deceased made an unlawful attack with a gun, defendant should be acquitted?" That is couching the presumption in very effective language and in language none can misunderstand. And in presenting the theory upon which defendant should be acquitted, this presumption is presented in the most favorable light to defendant, and the form used in presenting self-defense has been approved so often by this court, it seems useless to cite authorities. But see the charge copied in the opinion and Purdy v. State, 60 Tex.Crim. Rep., 131 S.W. Rep., 561; Pratt v. State, 59 Tex.Crim. Rep.; Jay v. State, 56 Tex.Crim. Rep.; Puryear v. State, 56 Tex. Crim. 231. These authorities set out the charge approved, and upon examination the charge on self-defense in those cases will be found to be almost in terms of the charge in this case. In a well considered opinion, Davis v. State, 28 Texas Crim. App., 542, Judge Hurt says:
"If such a charge is not excepted to at the time of trial, but is presented in a motion for new trial, which is the next point at which it could be presented, then its consideration by this court would be subject to another and a very different rule, which would be whether or not such charge was an error which, under all the circumstances, as exhibited in the record, was `calculated to injure the rights of the defendant,' and which is prescribed as one of the grounds for the granting of a motion for a new trial, in the following language: `Where the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.'
"Of what degree of force must the evidence be that tends to establish an offense, or tends to mitigate the offense charged, in order to require a charge applicable thereto? Chief Justice Roberts says that *Page 134 if its force is deemed to be very weak, trivial, or light, and its application remote, `the court is not required to give a charge upon it.' `If, on the other hand, it is so pertinent and favorable as that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, the court should charge so as to furnish them with the appropriate rule of law upon the subject.' Bishop v. The State, 43 Tex. 390 [43 Tex. 390]. Hence, unless the evidence tending to present a less degree of an offense, or any theory of defense, be so pertinent and forcible that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, a failure of the court to charge thereon would not be ground for reversal in the absence of exceptions.
"This position is in exact harmony with the first opinion in this case, and in accord with Bishop's case, supra, and a number of cases decided by this court, notably Cunningham's case, 17 Texas Court of Appeals 87 [17 Tex. Crim. 87]; Elam's case, 16 Texas Court of Appeals 34 [16 Tex. Crim. 34], and Leeper's case, 61 Tex. Crim. 129, decided at the present term, but not yet reported. See also Johnson's case, 27 Tex. 758.
"Loose expressions upon this subject can be found in the opinions of this court, but the principle is well settled and is absolutely correct, whether this court has always adhered to it or not, that in the absence of exceptions to the charge of the court, for this court to reverse, the evidence tending to present a phase of the case or theory favorable to the accused must be so pertinent and favorable that it might reasonably — not possibly — be supposed that the jury could be influenced by it in arriving at their verdict. Unless the evidence be of such a character no injury appears, no injury is probable — not possible, but probable — and unless this appears, there is no ground for reversal; and to reverse in the absence of probable injury would be contrary to principle." See also Godwin v. State, 39 Tex.Crim. Rep.; Wright v. State, 40 Tex. Crim. 45, and other cases cited in the original opinion.
In an opinion recently handed down by our eminent presiding judge, we are referred to Judge Hurt and Judge Roberts as two of the most eminent jurists who ever graced the bench in this State, and to which we acceded, and in this case if it should be conceded that there were some slight omissions in the charge, when the principle is announced in other language, and no possible injury could have possibly resulted to appellant, to reverse would be "contrary to principle," so says Judges Hurt and Roberts.
The only other ground insisted on for a rehearing is that the charge on self-defense in each paragraph where deceased's name is used "or Olive" should also appear, and it is cited that in the direct examination that appellant always referred to them as "they" and "them" and so coupled their acts and conduct as to render them inseparable. In the original opinion, it is shown that in the cross-examination, he separated them, and did not claim to be able to see *Page 135 what Olive was doing until Wagnon was shot to death, and a careful perusal of the facts again confirms us in our opinion. But what a play upon words is the contention of appellant? If he "coupled them together," the court fully and explicitly tells the jury that if Wagnon was "doing an act" such as to reasonably lead defendant to believe that he was in danger, he was justified and should be acquitted, and if the jury did not believe Wagnon was doing "any act" under appellant's testimony and the court's charge, upon what theory can it be believed that if the court had instructed the jury that if "Wagnon and Olive" was doing "any act" they should acquit? Wagnon was the man found with the gun in his hands. This is explained by Chadwick, and the fact that he had the gun in his hands, in view of the testimony of Chadwick and the fact that they must pass appellant's house, does not show or induce one to think that Wagnon or Olive, at the time, made any move to do appellant harm. If this arises at all, it arises on appellant's testimony alone, and this the jury rejected as a whole and believed the State's theory that appellant had been lying in wait, behind a brush pile, as evidence by signs of chewing and smoking, footprints, twisting of limbs, to make a blind, etc., as testified to by the witness Cole. The State's case presents a case of waylaying, a cold-blooded assassination, based upon preexisting malice. The defendant contended he acted in self-defense. The fatal wounds, as shown by the testimony of Dr. Allen, is evidence indisputable that neither had their face turned towards deceased when he sent the deadly missiles plowing into their heads and brains, and it is insisted that because in every paragraph of the court's charge he did not couple acts and conduct of Olive with the acts and conduct of Wagnon, although the court did tell the jury that "if it reasonably appeared to defendant that they were acting together, and either Wagnon or Olive made a demonstration" defendant was justified in killing Wagnon, charging the law as appellant insists it should be given in charge, but not at the "place" appellant now insists he would prefer to have had it, although at the time of trial he requested no instructions. As said by Judge White in McDade v. State, 27 Texas Crim. App., 641, if such a construction is to be given, and causes reversed, when every contention of a defendant is submitted in the charge, but not in the exact terms he, in the motion for new trial insists should have been done, "a full floodgate would be given to the most wicked passions, and murder, fearful as it already is, in a tenfold greater degree would stalk through the land, clothed in the panoply of law."
The motion for rehearing is overruled.
Overruled.