Appellant was convicted of manslaughter, and her punishment assessed at two years in the State penitentiary, from which judgment she appeals.
It appears that on the 16th of March, 1891, appellant was indicted and tried for the murder of one Eddie Gill, by stabbing her with a knife, on the 6th day of February, 1891. She was convicted of manslaughter, and appealed to this court. At the Tyler Term, 1891, the case was reversed for errors therein (30 Texas Criminal Appeals, 92), and the same transaction was before us in the Quinn case, 20 Southwestern Reporter, 1108, decided at Dallas Term. On January 5, 1893, the appellant was placed again upon trial, but having been previously acquitted of the two degrees of murder, she was tried for manslaughter.
After the evidence of the homicide was introduced by the State, the defense declined to introduce testimony, and moved the court to instruct a verdict of acquittal, on the ground that the State had proved the homicide to have been perpetrated upon express malice, and there was not a single fact proved in justification or of extenuation by showing passion or adequate cause. This the court declined to do, and appellant excepted.
At the close of the evidence, the court, at appellant's request, charged the jury, among other things: "If you believe from the evidence, beyond a reasonable doubt, that the defendant killed the deceased with a knife, and there are no facts or circumstances in evidence which excuse, justify, or extenuate the killing, then the killing is upon malice, and if you so believe you must acquit defendant." The court also gave the same instruction in his general charge. The jury convicted of manslaughter, and appellant insists the verdict is contrary to law and evidence.
An examination of the testimony shows that a bitter jealousy existed between deceased and appellant about a man whom they mutually claimed. On the 5th of February, a crowd of negroes were gathered at a dance, and the witness Frank Giles, in quest of a drink, passed deceased, standing on the east side of the house, talking to another woman, and went to a crowd gathered at the front gate. He was there but a few moments when one Rachel Quinn, a bystander, cried, "Did you see that damn bitch hit that woman?" He then saw deceased run out of the crowd at the front fence into the house, and appellant following after her. As deceased ran into the house, Rachel Quinn also pursued, and threw a box at her, and hit the door, thus designating the one referred to as the "damn bitch." Appellant entered the house by the back door, and killed deceased with a knife. Afterwards appellant came out and met Rachel Quinn, who asked "Did you get her?" and appellant answered, "Yes;" and Rachel Quinn then said, "You ought to have killed her," thus designating the person whom deceased had struck, for the record fails to suggest the slightest ill will between any other persons at the gathering save appellant, *Page 74 deceased, and Rachel Quinn. We think, therefore, there was evidence from which the jury could infer that appellant killed deceased while under a passion produced by a blow given by deceased, and given in a manner so severe or unprovoked that it at once aroused the violent and active indignation of a bystander. While it is true there is strong evidence of antecedent malice, upon which a finding of murder of the first degree would be sustained, yet the jury could readily refer the passion to the new provocation, and convict of manslaughter. The court did not err in refusing to instruct the jury to acquit because there was only evidence of murder, and not of manslaughter. It is not necessary now to decide whether the charge of the court given at the request of the defendant was correct. The judgment is affirmed.
Affirmed.
Judges all present and concurring.