In his motion for rehearing, appellant insists that the repeal of statutory adequate cause under the old manslaughter statute did not repeal, change, or affect the excessive force rule, which he here urges should have been submitted to the jury, and by which his punishment would have been only for murder without malice.
As supporting this contention, he calls attention to the fact that the excessive force rule was never the creature of or demanded by statute, but was written into the law of manslaughter by the decisions of this court, and that therefore the repeal of *Page 529 statutory, adequate cause reducing a killing to manslaughter did not and could not change that rule.
The authorities cited in our original opinion support appellant in his contention that the excessive force rule was the result of judicial interpretation of the crime of manslaughter by this court. Such also appears to be true of imperfect self-defense (Branch's P. C., Sec. 2008, Franklin v. State, 30 Texas Crim. App. 628, 18 S.W. 468; Nicks v. State, 46 Tex.Crim. Rep., 79 S.W. 35; Brown v. State, 54 Tex. Crim. 121, 126, 112 S.W. 80); of illegal arrest (Branch's P. C., Sec. 2006, Meuly v. State, 26 Texas Crim. App. 274,9 S.W. 563; Mooney v. State, 65 S.W. 927; Earles v. State,94 S.W. 466); of provoking the difficulty without an intent to kill (Branch's P. C., Sec. 2057, Young v. State, 41 Tex. Crim. 446,55 S.W. 331; Honeycutt v. State, 42 Tex.Crim. Rep.,57 S.W. 806; Halsford v. State, 53 Tex.Crim. Rep.,108 S.W. 381; Gray v. State, 61 Tex.Crim. Rep.,135 S.W. 1179); and of mutual combat (Branch's P. C. Sec. 1960, Delgado v. State, 34 Tex.Crim. Rep., 29 S.W. 1070; Stacey v. State, 33 S.W. 348; Reed v. State, 161 S.W. 97).
It must be remembered that the decisions announcing the rules stated were at a time when manslaughter was, by statute, an independent and substantive crime. Such is not now true, for with the enactment of our present murder statute, the statutory crime of manslaughter was repealed. Now, every unlawful killing — that is, intended killing — is murder, with punishment authorized to be fixed therefor from two years' confinement in the penitentiary to death, at the discretion of the jury. There are now no degrees of the crime of murder. Indeed, one convicted of murder which the jury found was committed without malice may, upon a re-trial, be convicted of murder with malice and a punishment fixed accordingly. Joubert v. State,136 Tex. Crim. 219, 124 S.W.2d 368. Under our present murder statute, the question of murder with and without malice relates only to the punishment authorized to be inflicted.
Art. 1257c, P. C. governs the submission of the question of murder without malice. A compliance therewith by a trial court is all that is required. For a trial court now to pick out any particular fact or set of facts in the evidence and instruct the jury that if they believed such fact or facts the killing would — as a matter of law — be one without malice, would of necessity constitute a charge upon the weight of the evidence.
The jury are the sole judges of the facts constituting adequate *Page 530 cause whereby an unlawful killing would be without malice.
In the instant case, the trial court fully presented the law of murder without malice, as required by Art. 1257c, P. C. This is all that the law required him to do, under the facts.
Appellant insists that the cases of Ely v. State,139 Tex. Crim. 520, 141 S.W.2d 626, and Rodriquez v. State,146 Tex. Crim. 206, 172 S.W.2d 502, support his contention and are at variance with the views here expressed. We did not so intend. If those cases are susceptible of being construed as supporting appellant's contention, they are hereby modified to comport with the views here expressed.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.