Appellant was on the 4th day of November, A.D. 1892, indicted for the murder of W.G. Veal, and upon the 10th day of November following sued out a writ of habeas corpus before the Hon. Charles Fred Tucker, judge of the Forty-fourth Judicial District. Upon hearing, bail was refused, and an appeal was taken to this court.
Bail should be granted in murder cases unless, upon examination of all the evidence adduced, the court should conclude that the proof of guilt is evident, and the accused would be convicted of murder in the first degree if the law was administered. The guilt of the accused may be evident, though there may be conflicting testimony. Ex Parte Smith, 23 *Page 446 Texas Ct. App. 125[446 Tex. Crim. 125]; Drury's case, 25 Tex. 45 [25 Tex. 45]. "Proof is evident" if the evidence adduced on an application for bail would sustain a verdict convicting the applicant of murder in the first degree. Foster's case, 5 Texas Ct. App. 625[5 Tex. Crim. 625].
It is well settled in this State, that after indictment found for a capital offense, it devolves upon the applicant to show he has a constitutional right to bail because the proof of his guilt is not evident. Scoggin's case, 6 Texas Ct. App. 546[6 Tex. Crim. 546]; Randon's case, 12 Texas Ct. App. 145[12 Tex. Crim. 145]; Smith's case, 23 Texas Ct. App. 123[23 Tex. Crim. 123]. In the case at bar, to obtain bail, it devolves upon the appellant to show — first, that when the intention to kill was formed, the mind of appellant was not calm and sedate, and in a condition to comprehend the nature of the act, and its probable consequences; and secondly, that it was not in such condition when he killed deceased; for, although the design to kill may have its inception and origin in an inflamed and excited mind, yet if there is a sufficient time for the passion to subside, and for reason to interpose, the homicide will be murder. Wadlington v. The State, 19 Texas Ct. App. 275[19 Tex. Crim. 275]; Whart. Hom., secs. 488, 489.
Appellant contends that the homicide at bar is bailable because committed tinder the influence of uncontrollable passion arising upon an adequate cause, to-wit, insulting conduct to a female relation. First, it is insisted, that while the relationship did not in fact exist at the time of the outrage, yet that Mrs. Jones, by subsequent marriage, became a relation, because under the permanent protection of appellant, by virtue of Penal Code, article 601, which reads: "That any female tinder the permanent or temporary protection of the accused at the time of killing shall also be included within the meaning of the term 'relation.' " Secondly, that article 597 is not intended to be exclusive, but is only illustrative of the character of injury that wilt be deemed an adequate cause at law to reduce homicide to manslaughter. Thirdly, appellant contends, that if not manslaughter, it can only be murder in the second degree; for the nature of the provocation was such as to negative the probability that his mind was at, any time calm and deliberate, and in proof that it was not so, refers to his conduct and conversation with Kendall. The State replies, that articles 597 and 0301 have no application to the case at bar, and no adequate cause is shown for the homicide, but that, whether there was adequate or inadequate cause, still the threats, preparation, the interval between the provocation and the killing, the absence of all excitement at the time of killing, and the manner of killing, afford evident proof of a formed design in a calm and sedate mind.
Upon the first ground, we hold that article 601 of the Penal Code is to be construed with article 597. That is to say, the insult must be given to the female while tinder the protection of the slayer, and the killing must also be done while she is under his protection. The difference between *Page 447 the cases of an actual relation and the statutory relationship of protection is, that while in both cases the insult must be given while the relationship exists, the killing must occur at the first meeting in the case of the actual relative, and in the statutory relationship it must occur during the existence of the relationship; for if the female so insulted leaves the protection of the slayer before the first meeting with the one insulting her occurs, the right to act is gone. The proposition that one has a right to avenge the wrongs of any female he may take under his protection, without regard to the time the injury was done, is without force or merit; for, apart from the disastrous consequences of such a construction, the insult would not, in fact, have been offered to a female relation, which must be shown before the statute can be invoked.
Upon the second ground, we hold that we have no right to extend the purview of section 4, article 597, Penal Code, so as to include others not mentioned. The law might have declared, that insulting words and conduct to any relative should be deemed adequate cause for homicide; but it did not do so; and an insult to any male relative, however feeble, infirm, or loved, can not be regarded as adequate cause, because the statute limits it to female relatives. Again, the statute lays the limitation as to time, and we can not legislate. While public policy recognizes, oil the one hand, the frailty 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 110 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 11 sudden passion." Penal Code, art. 593. No time is allowed, except in the cases mentioned in article 597, for brooding over the wrong or for compassing and preparation; for then the homicide becomes deliberate, premeditated, and malicious, though the provoking cause be an adequate cause.
But the Code has, in cases of adultery and of insulting words find conduct to female relatives, extended time in which homicide, when committed, may still be manslaughter. In such cases the law requires the homicide to occur as soon as the adultery is discovered (Penal Code, article 597), or as soon as the party killing may meet the one giving the insult, after being informed thereof. Penal Code, art. 598. If not done at such times, the injury may become evidence of malice and preparation to kill; evidence of premeditation and deliberation.
But, again, to reduce the homicide to manslaughter, ever when adequate *Page 448 cause exists, and the killing takes place at the time required by law, it must also appear that the homicide was a result of a passion that rendered the slayer incapable of cool reflection. In Breedlove's case, 26 Texas Court of Appeals 453[26 Tex. Crim. 453], where, it seems the wrong man was shot, Willson, J., says: "If defendant had killed King, instead of Amos, shortly after he (defendant) had been informed and was convinced that King had carnal intercourse with his (defendant's) wife, such killing under the facts would have been murder in the first degree. It could not have been manslaughter, because We evidence shows that in committing the homicide his mind was cool, sedate, and deliberate. He prepared himself with a weapon, traveled half a mile, secreted himself in a convenient place, and waylaid his victim. He was not acting under the influence of sudden passion." Again, in Massie's case, 30 Texas Court of Appeals 69[30 Tex. Crim. 69], where defendant killed deceased for being too intimate with its wife, this court held, that in the absence of passion that reduces murder to manslaughter, the adequate cause may become cogent evidence of malice, and an aggravating circumstance attending the commission of the offense.
2. But the law made a further concession to human frailty when it divided murder into two degrees. At common law this distinction did not exist, and murder, whether upon express or implied malice, was punished with death. But, under our code, a homicide committed in sudden passion, upon an inadequate cause, is murder in the second degree. That is to say, when a homicide is committed upon a provocation that ought not to have aroused the passion of a person of ordinary temper, yet in fact the slayer was laboring under a passion so strong as to render him incapable of considering the consequences of his act, it is but 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, 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.
There may be, injuries which do not come within the purview of Penal Code, articles 507, 598, yet are so grave that the mind, however long the interval, would not ordinarily dwell calmly and deliberately upon them, and a homicide committed in consequence thereof may not be greater than murder in the second degree. Yet, even in such cases, if the evidence renders it certain that the mind of defendant was in fact calm and deliberate when the design to kill was formed, or that, when it was executed, it was done in pursuance of a formed design, as manifested by the threats to take life, by the purchase and exhibition of weapons procured for that purpose, said purpose to be consummated whenever the parties *Page 449 should meet, and at the time of the killing there was no excitement other than that naturally attending such an act, but the same is committed calmly and coolly, or covertly, it is murder upon express malice.
It is not usual or proper to discuss the evidence in the case, and we simply state the law of the ease, as it appears of record; and we have reached the conclusion that there is no error in the lower court in refusing bail, and the judgment is affirmed.
Affirmed.
Davidson, J., concurs. Hurt, P. J., concurs in the conclusion reached, but not in all the propositions stated.