Before the original opinion was prepared, considered in consultation and handed down, the record in this case was read and studied again and again with a great deal of care. When the cause was submitted it was orally argued by appellant's able attorney. In addition, a very lengthy and elaborate brief was filed, all of which was also fully considered and appellant's brief studied carefully. Notwithstanding this, in dictating the opinion, some *Page 475 mistakes in stating some of the facts were made. These have been pointed out in appellant's arguments on his motion for rehearing. It is difficult to understand how such mistakes are made in dictation and especially how they escape detection when reading the opinion and discussing the case in consultation. Such mistakes are always to be regretted. It is, in substance, conceded by appellant's attorneys in their arguments on rehearing that some, if not all, of these mistakes are somewhat immaterial. We think none of them are material.
In appellant's motion for rehearing he presents several of the same matters passed upon and decided in the original opinion. It is unnecessary to take up and discuss most of them again, but we will take up and discuss the material and important ones. Appellant, in presenting his motion for rehearing, by each of his attorneys, has filed quite lengthy, vigorous, and able arguments presenting their views and contesting the original opinion. These also have had full and careful consideration. We will now pass to the consideration of said material and important questions.
The first of these is appellant's contention that the ground of his motion for new trial, claiming that the verdict of the jury was reached by lot, should have been considered and the evidence of some of the jurors heard by the lower court, and that this court erred in not reversing the case because thereof. This matter was sufficiently stated in the original opinion. It is unnecessary to restate it here. As we understand appellant's contention and argument, it, in substance, is, that his motion for new trial on that ground did not have to be sworn to in order to present the question and require the lower court to swear and hear the jurors testify; contending that the statute does not so require. Concede, for the sake of the argument, that our statute in stating on what grounds a motion for a new trial may be granted, does not in express language, require the motion setting up matters extrinsic the record, to be sworn to, then what does our law say shall be required? Article 26, Code of Criminal Procedure, in unmistakable, clear and explicit language, says: "Whenever it is found that this Code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and govern."
In 12 Cyc., 746, in like language, it is said: "In England at common law, and in most States as matter of practice, the motion for a new trial, when founded on facts not of record, is made on affidavits signed and sworn to by defendant or by some person having knowledge of the circumstances." Precisely to the same effect is I Chitty's Crim. Law, 659.
In II Thompson on Trials (2nd ed.), sec. 2758, he says: "By the practice of a majority of the States, where the grounds for new trial are other than that the verdict or judgment are contrary to the law or evidence, or that the trial court erred in some matter of law, the motion must be supported by affidavit, unless it is made upon the minutes of the court, by bill of exceptions or a statement of the case, according to the practice of many States. The grounds usually enumerated *Page 476 are (1) irregularities; (2) misconduct of the jury, etc. . . . Inthe absence of statutes requiring affidavits in support of themotion, by the practice of many States, they are held necessary.. . ." To precisely the same effect is his same section in his first edition.
In 14 Ency. of Plead. Prac., p. 904, it is again said: "When the ground for a new trial consists of extrinsic facts and matters not of record, such as irregularity of the court, jury, or prevailing party, or accident and surprise, or misconduct, or newly discovered evidence, the proper method is to set forth the facts by affidavits in support of the motion, as stated heretofore in considering these grounds for a new trial."
In 12 Ency. of Plead. Prac., pp. 557-8-9, it is said: "When the objection has not been waived, misbehavior on the part of the jury is properly taken advantage of by a motion for a new trial. . . .
"When a party moves for a new trial on the ground of misconduct which occurred during the trial, he must aver and show affirmatively that both he and his counsel were ignorant of the misconduct charged until after the trial.
"An application for a new trial on the ground of misconductmust be supported by affidavits as to the facts. An affidavit to secure a new trial on account of the misconduct of a juror must clearly set out the facts constituting the alleged irregularity. The affidavit should be positive as well as specific, and should be sustained by oath and not merely founded on information and belief."
In 28 Cyc., p. 11, it is said: "In many jurisdictions it is a rule of practice that a motion based on facts outside of the record, or of which the court can not take judicial notice, must be supported by affidavits showing such facts."
We think there can be no sort of doubt but that these authorities establish, beyond question, that in order for appellant to have had considered his ground of motion attacking the verdict of the jury on any matter extrinsic the record itself, that, as a matter of pleading, he must support it by his own affidavit or the affidavit of someone else specifically showing the truth of the grounds of attack. And when it is not so sworn to or supported it presents no question requiring the lower court to consider or investigate it.
But we are by no means left to common law authorities or authorities outside of this State. They are ample, clear and to the point in this State.
Judge White, in section 1155 of his Code of Criminal Procedure, expressly gives the form of a motion for new trial under our statute. And under subdivision 3 of article 837, prescribing the ground of verdict by lot on which a motion for new trial shall be based, he gives this form: "3. The verdict of the jury was decided by lot (or, in a manner other than by a fair expression of opinion by the jurors) in this, towit: (here set out the facts) and defendant, in support of this ground for new trial, submits herewith the affidavits of the jurors *Page 477 John Smith and Thomas Jones, etc., who sat upon and tried the case, said affidavits being marked as exhibits A and B."
In Johnson v. State, 24 S.W. Rep., 94, when Presiding Judge Hurt and Judges Davidson and Simkins constituted this court, through Judge Simkins they said: "The other ground upon which a reversal is sought is by impeaching the verdict of the jury.This, however, can not be considered, as the affidavit does notappear in the record as being signed or sworn to. We do not hesitate to say that if we were to consider it no good reason is shown for reversing this case. It does not pretend to state the names of the jurors who made the statement against appellant, nor that it influenced the jurors' finding in any way. There was noissue tendered the State in said motion. The judgment is affirmed."
In Morrison v. State, 39 Tex.Crim. Rep., when this court was composed of said Presiding Judge Hurt and Judges Davidson and Henderson, through Judge Henderson, they said: "Appellant assigned as one of the grounds of his motion for a new trial that the jury received other testimony than that developed on the trial of the case, towit, that one of the jurors stated in the jury room that a former jury which tried the case found defendant guilty, and assessed his punishment at twenty years in the penitentiary. Appellant stated in his affidavit that he was unable to procure an affidavit from any of the jurors as to the facts, because they were not willing to make one, and asked the court to summon the jurors who tried the case, and place them under oath, so that the defendant might have the benefit of their testimony. The State made a motion to strike out said affidavit and that part of the motion, because it was too general, and did not set up the facts. The court granted the motion, and struck out that part of the defendant's application for a new trial. Appellant then offered to show by one A. Cohen that he was one of the jurors who tried the case, and that, after the jury had retired to consider their verdict, some member of the jury stated that defendant on a former trial had been convicted, and given twenty years in the penitentiary; that said statement about what defendant had received as punishment at a former trial influenced him in the verdict rendered on the last trial. The district attorney objected to this evidence on the ground that it should be presented by affidavit, and not stated orally; whereupon defendant's counsel stated that the witness was unwilling to make an affidavit, but that he would swear to the above facts upon the stand under oath; and the court, over the defendant's objection, refused to allow said witness to testify as aforesaid. It is not necessary to decide the questions involved in this matter, as the case must be reversed on other grounds heretofore stated. We are inclined to the opinion, however, that the affidavit seeking to attack the verdict of the jury was too general. The practice of allowing jurors to impeach their verdict is not countenanced in the courts of most of the other States of the Union. See 2 Thomp. on Trials, sec. 2618, and authorities there cited. Our courts, however, have taken a contrary view, and we have gone to a *Page 478 considerable extent in authorizing jurors to impeach their verdicts. The attempted impeachment here, however, as far as the predicate was concerned, stated no facts, and, we think, was too general in its terms. It is not deemed necessary to discuss what effect the announcement in the jury room that appellant had previously been convicted, and his punishment assessed at twenty years in the penitentiary, may have had upon the jury. The mere statement of that fact in the jury room may not have operated to the prejudice of appellant. Before a case would be reversed on this ground some prejudice must be shown. The bare statement that a former jury had tried the case, and rendered a certain verdict against defendant, would not ordinarily cause a reversal."
Again, when Presiding Judge White and Judges Hurt and Davidson constituted this court it, in Gordon v. State, 29 Texas Crim. App., 410, in an opinion by Judge Davidson, held: He stated that appellant filed his motion for new trial and therein alleged that on the trial below he did not plead, nor did his counsel for him, nor was he called on to plead, nor offered the privilege of pleading, and that neither he nor his counsel refused to plead so as to authorize the court to enter one for him. "This motion was sworn to by the defendant in the court below. There was a sworn motion also to correct the judgment by eliminating therefrom the recitation of the plea of not guilty therein entered. This, as well as the motion for a new trial, was overruled. There are no affidavits in the record as to the truth of these statements of defendant, except his own." Then in the opinion is copied what purports to be an affidavit not signed, purporting to be the affidavit of two of his attorneys, wherein it is stated that they examined said motion for new trial and that the matters and things set out therein are within their knowledge true and correct. To the bottom of this document this appears:
"Witness my hand and seal of office at Fort Worth, this the 24th day of January, 1891.
"L.R. Taylor, District Clerk."
The opinion proceeds to state that this document was filed January 24, 1891. It was not signed by either of the parties named in the body of it. It did not have the jurat of the officer attached to it, certifying the necessary oath was administered to said named parties, nor is there anything to indicate that they were sworn to its contents. Judge Davidson then says: ". . . It will be seen that it is not an affidavit. It can not be treated as an affidavit.
"Nothing will be indulged in favor of such matters when they operate as an attack upon the judgment of a court of record, to the end that the judgment may be set aside or vacated on appeal. Every presumption must and will be indulged by appellate courts, tending to uphold and sustain judgments of trial courts. A party attacking such judgments must make it apparent that sufficient error exists to set aside or annul them." And he affirmed said judgment.
In a death penalty case, which was affirmed, Shutt v. State, 71 S.W. *Page 479 Rep., 18, this court, when composed of Davidson, Presiding Judge, and Judges Henderson and Brooks, through Judge Brooks, said: "In motion for new trial he (appellant) also complains that the foreman of the jury, Hardy, prior to being accepted upon the jury, stated that he did not have time to serve upon the jury; that he would acquit or convict defendant in five minutes. To strengthen appellant's position, he insists that the verdict was returned in thirty minutes. We can not review this question, in the absence of bill of exceptions. And there are no affidavits presenting this matter, but it is brought forward in the motion sworn to by appellant. It is well known that issues of fact made in motion for new trial must be sustained by evidence dehors the motion. The fact that appellant swore to the same is not sufficient," citing Gordon v. State, supra.
In the case of Moss v. State, 39 Tex.Crim. Rep., on rehearing, this court, through Judge Davidson, said: "The grounds of the motion for a new trial for that reason were not, and could not be, considered. The motion for rehearing is based upon the fact that said statement was not considered, and asserts as a fact that the county judge approved a statement of facts, and had it filed during the term at which the case was tried. This motion is signed by the attorneys, but there is nothing to indicate to this court that said statement of facts was approved and filed, or that there was any statement of facts prepared in the case, outside of this statement of the motion. This motion is not sworn to, and there is nothing in it, by way of certificate or affidavit or certified copies, that there is a statement of facts on file in the trial court, approved by the judge. As the matteris presented to us in the motion, we can not consider it."
In Dignowitty v. State, 17 Tex. 521, when our Supreme Court had criminal jurisdiction on this subject it said: "The application for a new trial, resting upon the unsupported affidavit of the party, was manifestly insufficient, though its force had not been impaired by the counter affidavit or by anything appearing to the contrary, or the matters deposed to by the accused."
In Goodson v. State, 41 S.W. Rep., 605, this court, through Judge Davidson, said: "As the second ground of the motion for a new trial, appellant stated that Marcus Taylor was related to W.S. Brooks within the third degree, and the record shows that W.S. Brooks was joint owner of the stolen animal, and that, therefore, Marcus Taylor was disqualified as a juror. These matters are in no way verified in any part of the record, except that Brooks was a part owner of the animal, and there is no bill of exceptions showing that Marcus Taylor was a juror in the case. There is nothing except the simple statement of appellant in his motion for a new trial, indicating that Marcus Taylor was related to W.S. Brooks. If counsel desired this matter considered on appeal, they should have established it in some manner." See, also, Lester v. State, 2 Texas Crim. App., 432.
In Stubblefield v. Stubblefield, 45 S.W. Rep., 967, the Court of Civil Appeals of the Third District, through Chief Justice Fisher, on *Page 480 this question said: "The point presented in the motion for a new trial that the juror Daniels was not qualified to sit upon the jury was not raised in a way that required the trial court to pass upon that question. Daniels, it seems, was one of the jurors that participated in the trial of the case. No objection was raised at the time as to his disqualification, which consisted, as stated in the motion for a new trial, of bias in favor of the plaintiff, and that he made statements to the jury after retirement to deliberate upon their verdict. The conduct of the juror in this respect, and his disqualification by reason of bias in favor of the plaintiff, are only called to the attention of the court in the motion for a new trial, which was not sworn to; nor is it supported by any affidavit whatever."
Kahanek v. Galveston, etc., R.R. Co., 72 Tex. 476, Chief Justice Stayton of our Supreme Court, in passing upon what character of affidavit could be considered in a motion for new trial, said: "It may be claimed, however, that appellant offered such evidence in connection with his motion for a new trial as was sufficient to show that the county judge was not disqualified. That consisted of an unsworn statement made by the county judge on the 10th of December, 1887, and filed with the motion. It was no part of the proceedings or record of the proceedings which were had on August 6, 1887, in the County Court.
"No bill of exceptions was taken to the action of the court in overruling the motion for a new trial, and we are unable to ascertain whether the court considered or refused to consider the statement made by the county judge.
"If he refused to consider it he did not err, even if upon an issue made he might have heard evidence for the respective parties as to the qualification of the county judge. Slaven v. Wheeler, 58 Tex. 23.
"When matters of fact are involved in the rulings of the court below such rulings will not be revised by this court, unless the facts are substantiated by proper bill of exceptions. Statements in a motion for new trial or assignment of error will not suffice." Marshall v. State, 5 Texas Crim. App., 273; Sharp v. State, 6 Texas Crim. App., 650.
In Jordan v. State, 10 Tex. 480, in discussing the ground of a motion for new trial of matters dehors the record, the Supreme Court said: "This court can not notice the mere statements of counsel made in their motion for a new trial." And further, on page 502, said: "In considering the motion, the court may judge, not only of the competency, but of the effect of evidence. There may be cases where the court might well grant a new trial, if, in the opinion of the Presiding Judge, injustice had been done; while, at the same time, should a new trial be refused, this court would not be warranted in reversing the judgment. The judge who presides at the trial is afforded much better and more ample means of judging of the merits of the application than the revising court can be. And, therefore, it is the governing rule of the action of this court, affirmed and enforced by repeated decisions, from the earliest cases upon the subject to the present time, not to reverse the judgment of the District Court refusing a new trial, *Page 481 unless some principle of law has been violated, misconceived or disregarded, to the prejudice of the party, or there is good reason to apprehend that injustice has been done, in refusing the application. Though the District Court, in its discretion, upon the application of the accused, might have granted a new trial, if, from the evidence and circumstances of the case, as they were apparent to the Presiding Judge, in his opinion, the ends of substantial justice required it; yet, from anything before us in the record, we can not say that any principle or rule of law has been infringed or injustice done."
In Short v. State, 36 Tex. 644, the Supreme Court said: "After the verdict of the jury the defendant filed a motion for a new trial, and assigns as grounds for the motion two alleged errors. The second, which is, that there were not twelve competent and legal jurymen empaneled to try said case, appears first in the motion for a new trial, and is wholly unsupported by the record, and therefore deserves no further notice here."
In Forcy v. State, 60 Tex.Crim. Rep., it is said: "It has been many times held that a mere statement of a fact in a motion for new trial or in bill of exceptions is not the equivalent of finding that the fact so stated is true."
In Salmon v. State, 69 Tex.Crim. Rep., 154 S.W. Rep., 1026, this court said: "Appellant contends in his motion for new trial that the verdict of the jury was reached by lot. This motion is not sworn to and is in no way supported by any affidavit. Under such circumstances the court did not have to consider it."
We have already quoted in the original opinion what this court said in Bryant v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 1156: "It has always been held that when matters extrinsic the record are sought to be raised in motion for new trial, such ground should be verified by affidavit of the appellant."
In Serop v. State, 69 Tex.Crim. Rep., 154 S.W. Rep., 558, this court said: "In the motion for a new trial, defendant alleges that the jury discussed on their retirement the prevalence and frequency of robbery in the City of Dallas, and alleges that this discussion was detrimental to defendant. This ground of the motion is not supported by the affidavit of any juror nor any person who purports to know that such matters were discussed by the jury; therefore it presents no error." While some of these cases may not be directly in point, the trend of all of them are. The italics in quoting above are ours.
In the original opinion we also cited Maples v. State,60 Tex. Crim. 169; Patterson v. State, 63 Tex.Crim. Rep.; Scott v. State, 143 S.W. Rep., 228, to the effect that the affidavits contesting the grounds of his motion for new trial extrinsic the record were void and could not be considered when made before the attorney for either side in the case. There are other decisions to the same effect unnecessary to cite. This court, through Judge Davidson, in said Maples case, supra, said: "Under our statute the court may decide a motion for *Page 482 new trial on contested issues by means of affidavits or by hearing testimony. Of course, the affidavits mentioned in the statute means such as can be legally taken. An affidavit taken by a party not authorized to administer oaths in the particular transaction would not constitute a legal affidavit, and, therefore, not the basis of testimony on objection," citing Testard v. Butler, 20 Texas Civ. App. 106[20 Tex. Civ. App. 106]; Blum v. Jones, 86 Tex. 492 [86 Tex. 492]; Floyd v. Rice, 28 Tex. 341; Rice v. Ward, 93 Tex. 532; 13 Cyc., 852, for collation of authorities.
Our statute, article 837, Code of Criminal Procedure, prescribes: "New trials in cases of felony shall be granted for the following causes and no other." Then follows nine separate and distinct grounds specified in the statute. Eight of them, — all except the ninth, — provides for matters which can be used to attack the verdict of the jury, which are extrinsic the record, and are not included therein. Even within some of these eight, there may be embraced several distinct and separate matters.
Appellant even urges strenuously that the lower court should take as confessed, unless expressly by written pleadings contested by the attorney representing the State, such extrinsic attack of the jury, unsupported by anything on earth, affidavit or otherwise, merely setting up such ground in the motion for new trial, and hold as sufficient, and require the court to grant a new trial. Such doctrine can not for one moment be sanctioned by this court. The rules of law above shown, wherein it is expressly required that any ground in a motion for new trial which is extrinsic the record, attacking the verdict of the jury, must, and shall be supported by affidavit, in order to even raise the question so as to authorize the lower court to consider it at all, is absolutely essential to the due administration of justice and the proper procedure in the trial of causes in the court below. Otherwise what a flood gate of mere "fishing" with a drag net would be turned loose, unsupported by affidavit or the record, or otherwise! Verdicts and judgments of the lower court, if such were the case, would be mere farces. The trial courts would be converted into courts for the trial of the jury and not of an accused. The time of the term of court would be taken up in hearing the twelve jurors testify in every case the details of how they arrived at their verdicts. And, in addition, it might be necessary to hear many other witnesses. The jurors would be attacked in their testimony by admissions or statements claimed to have been made out of court. Their general reputation for truth and veracity might also be attacked and a great number of witnesses sworn and testify on various phases of such "fishing" unsworn grounds for new trial. All merely on a "fishing" statement made in the motion for new trial, that they, in some unknown and unalleged way, improperly arrived at their verdict. Such contests would engender anything else but the due and orderly administration of the law, and fair and legal trials and verdicts. The practice in the lower courts has all the time been, for an accused, himself, or someone for him, who knows *Page 483 the facts, to swear to any extrinsic attack of the verdict, in order to have such ground considered.
Before passing from this question we desire to state that our recollection is clear and distinct that appellant's attorney, in presenting this question in oral argument on the original submission of the case, stated to the court, in effect, that if the court below had heard the jurors, who were present testify, it would have been shown that they agreed to set down the respective time they each were in favor of assessing as a penalty against appellant, add that up and divide it by twelve and when they did so, the quotient amounted to nineteen years and two months or nineteen years and four months, we are not clear and distinct whether it was two or four months, — but one or the other. And that when they found that their experiment or agreement resulted in this time, that they, thereupon agreed, — all of them, — to fix the amount of the punishment at nineteen years even, and not nineteen years and two or four months, as the case was, the result of which, in our opinion, would be that while they experimented as to what the number of years, under the process stated, would amount to, when they ascertained that it would be nineteen years and two or four months, they thereupon abandoned their previous agreement to abide by the result, did not abide by it, but unanimously agreed to fix a less time, and did fix a less time than the quotient reached in the manner suggested. Under many decisions of this court, if that was the case, the verdict was a valid one and the court should not have set it aside even if he had heard the testimony. Pruitt v. State, 30 Texas Crim. App., 156; Cravens v. State, 55 Tex. Crim. 519; Reyes v. State, 55 Tex.Crim. Rep.; Goodman v. State, 49 Tex.Crim. Rep.; Barton v. State, 34 Tex. Crim. 613; Hill v. State, 43 Tex.Crim. Rep.; Keith v. State, 56 S.W. Rep., 628; Leverett v. State, 3 Texas Crim. App., 213. It is needless to cite the many other cases to the same effect. There is no intimation in this court, nor was there in the lower court, that any juror hesitated about finding appellant guilty of murder in the second degree. In fact, we take it this was an absolute certainty. They at first differed merely as to the number of years they should fix as his punishment.
In discussing one of appellant's bills of exceptions, wherein the State was permitted to contradict the testimony of appellant's wife wherein she testified that deceased was the father of both of her children, in some way we incorrectly stated this: "This older child was born within a few months prior to the marriage of deceased and Sallie, and the question arose as to the paternity of that older child. Her conception resulting in the birth of this child, occurred months before deceased and she were married." Taking this statement as a whole, it certainly could not be misleading, did not and could not have had any effect on the decision. However, where the words "prior to" in the sentence quoted above, beginning with, "this older child was born within a few months prior to the marriage of deceased and Sallie," appear, the use of said words "prior to," was a mistake, and instead should have been *Page 484 after. For the evidence without contradiction shows that this older child of Sallie's was born within a few months after her marriage to deceased, and, as stated in the latter part of the quotation above, "her conception resulting in the birth of this child occurred months before deceased and she were married."
There is but one other question we will discuss briefly which is very earnestly pressed by appellant; and that is his contention that the evidence was wholly insufficient to sustain a verdict for murder in the second degree, and that it excluded any other finding of guilt than manslaughter. We deem none of the other questions again presented in the motion for rehearing require any discussion.
Appellant, in his argument for rehearing, claims that this court, in the original opinion in discussing some of the evidence as to murder in the second degree, incorrectly stated the effect of some of the evidence. What he calls attention to and urges was said more in discussing manslaughter than murder in the second degree. We did not undertake to state all the evidence, nor detail it. We were merely stating some of the conclusions which the whole evidence authorized. Such mistakes in our conclusions, if there are any, are of no effect upon the conclusions reached, nor the decision of the case. Different parties in studying the record might reach different conclusions, perhaps. We were looking at it from a wholly disinterested standpoint. Appellant's attorneys naturally and properly look at it from a partisan standpoint. They urge every particle of evidence, and cull it from the whole record, that tends in any way to support their contention. We do not so look at it, nor consider it, but, as stated above, we do so wholly disinterested, not biased, or prejudiced, and with the view of seeing whether or not the jury from the whole evidence were justified in reaching the conclusion they did. We think none of these matters are of sufficient importance to restate or rediscuss them.
There can be no question, and we for no moment in the original opinion intimated, that manslaughter was not pertinently and forcibly raised by the evidence. It unquestionably was. But that by no means excludes the fact that murder in the second degree was also shown. The jury and the lower court heard all of the witnesses, saw their manner of testifying and unanimously reached the conclusion that while manslaughter was raised, appellant was not guilty of that offense, but instead, was guilty of murder in the second degree. The evidence, without reciting it, is amply sufficient to sustain this unanimous opinion of the twelve disinterested and impartial jurors and of an able and impartial trial judge.
In accordance with our statute two clear requisites are necessary to constitute manslaughter: First, "sudden passion," and, second, that that "sudden passion" must arise from an "adequate cause." And that, in order to show that an unlawful homicide is manslaughter and not at least murder in the second degree, such homicide must be "committed under the immediate influence of sudden passion," and that "sudden passion" must arise "from that adequate cause." If either of these *Page 485 requisites are wanting, then the homicide can not be manslaughter, but must be murder in the second degree at least. Puryear v. State, 56 Tex.Crim. Rep.. However "sudden" the passion, or whenever it was aroused, if the evidence does not show that it was from an "adequate cause," the homicide can not be manslaughter. And whatever the "adequate cause," if the homicide was not committed "under the immediate influence of sudden passion arising therefrom," it can not, under the statute, be manslaughter. See McKinney v. State, 8 Texas Crim. App., 626; Ex parte Jones, 31 Tex.Crim. Rep.; Massie v. State, 30 Texas Crim. App., 64; Blackwell v. State, 29 Texas Crim. App., 200; Miller v. State, 31 Tex.Crim. Rep.; Clore v. State, 26 Texas Crim. App., 624; Hill v. State, 11 Texas Crim. App., 456; Neyland v. State, 13 Texas Crim. App., 536; Childers v. State, 33 Tex.Crim. Rep.; Pickens v. State, 31 Tex. Crim. 554; Breedlove v. State, 26 Texas Crim. App., 445; Jordan v. State, 62 Tex.Crim. Rep.; Oldham v. State,63 Tex. Crim. 527, 142 S.W. Rep., 13; Alexander v. State,63 Tex. Crim. 102, 138 S.W. Rep., 737.
In Ex parte Jones, 31 Tex.Crim. Rep., this court correctly held: "But the Code has, in cases . . . of insulting words and conduct to female relatives, extended the time in which homicide, when committed, may still be manslaughter. In such cases the law requires the homicide to occur as soon as . . . the party killing may meet the one giving the insult, after being informed thereof. If not done at such time, the injury may become evidence of malice and preparation to kill — evidence of premeditation and deliberation. . . .
"The law made a further concession to human frailty when it divided murder into two degrees. . . . Under our Code, a homicide committed in sudden passion, upon an inadequate cause, is murder in the second degree. . . . But it is to be observed it must bepassion that strikes; for if the slayer broods over his injury (or insult), 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."
The court in this case expressly and pointedly, in effect, submitted to the jury that if the mind of the appellant was under the immediate influence of sudden passion, aroused by adequate cause, and that cause was the insult to his wife, to find him guilty only of 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." Massie v. State, 30 *Page 486 Texas Crim. App., 64. To the same effect is Miller v. State,31 Tex. Crim. 609; Ex parte Sherwood, 29 Texas Crim. App., 334, and many other cases.
Appellant had known of the insulting conduct of deceased to his wife in a letter he had written to her months before this killing. These insults had been renewed just two days before the killing. In the meantime and all along during the same time, a controversy had arisen between appellant's wife and him and the deceased over the custody of the deceased's and appellant's wife's younger child. Appellant considered all these matters. He went to town in the morning of the day the killing occurred and investigated the divorce decree between the deceased and his wife as to the custody of this child, talked to parties about it. He himself knew the deceased was then in the same town; he had seen him. He deliberately, and with malice in his heart, went and bought a double-barrel shotgun of a special bore that shot with unusual force the deadly buckshot. Specially bought the largest buckshot he could find for this gun, declining smaller shot. He loaded this gun while in town with these deadly missiles. The gun was wrapped up with paper so as to conceal it, and he carried it about in this condition. Mr. Wells, a witness of the killing, a disinterested white man, standing within a few feet of the appellant at the time it occurred, said of this gun thus wrapped, "I thought it was window shades"; that appellant stood there, knowing that his intended victim was in that immediate vicinity, because he had seen him go down that way shortly before then. Standing thus in wait for his victim, he saw him approaching wholly unarmed, with his hands swinging down by his side, the deceased not discovering appellant, walked leisurely within a few feet of him. And, as the same witness, Mr. Wells, testified, "at this time Emmitt Moore was just stepping upon the sidewalk of the curb and just as he made the second step Mannie cocked the gun and said, `There is the son-of-a-bitch now,' and fired. At the time he was shot Emmitt seemed to be walking along leisurely with his hands down, going towards Mr. Cardwell's front door. I did not hear him say a word. As the gun fired he put his coat around his neck and made towards Cardwell's store. After Mannie fired the first shot he followed Emmitt with his gun drawn and kept snapping it. Somebody came up and helped take the gun away from Mannie. Mannie followed Emmitt to Cardwell's store." And the evidence, without contradiction, further shows that as he staggered into Cardwell's store with appellant following him and snapping his gun at him, he fell dead. Many other circumstances going to show murder in the second degree might be recited. The evidence, in our opinion, was amply sufficient to sustain murder in the second degree. The motion for rehearing is overruled.
Overruled.
DAVIDSON, JUDGE, dissents. *Page 487
December 21, 1914.