Appellant again presents some of the questions which were decided against him in the original opinion, and *Page 579 he complains that the court did not pass upon one question which he presented, which was his complaint of the charge of the court in defining malice and malice aforethought.
The court's charge on this subject was this: "Malice aforethought is the voluntary and intentional doing of an unlawful act, by one of sound memory and discretion with the purpose, means and ability to accomplish the reasonable and probable consequences of the act.
"Malice aforethought includes all those states of mind under which the killing of a person takes place without any cause which will in law justify, excuse or extenuate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.
"Malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse." His complaint was directed to the last paragraph just quoted defining malice in that the word "just" was used instead of the word "legal" before the words cause or excuse. This criticism is hypercritical. But the holding of this court has been directly against his contention. The court's definition of both "malice aforethought" and "malice" herein is a literal copy from the court's charge in Witty v. State, 75 Tex.Crim. Rep., which was expressly approved as correct by this court. For other cases see note 4, 1 Vernon's Crim. Stats., p. 689, and cases there cited.
Judge White, in his Ann. P.C., says: "Although, in its popular sense, `malice' means hatred, ill will or hostility to another, the legal significance of `malice aforethought' is more extensive, and includes all those states of the mind under which the killing of a person takes place without any cause which will in law justify, excuse, or extenuate the homicide. It is `the doing of a wrongful act intentionally, without just cause or excuse.' `It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief; the existence of which is inferred from acts committed or words spoken.' Lander v. State, 12 Tex. 462; McCoy v. State,25 Tex. 33; Tooney v. State, 5 Texas Crim. App., 163; Evans v. State, 6 Texas Crim. App., 513; Harris v. State, 8 Texas Crim. App., 90; McKinney v. State, 8 Texas Crim. App., 626; Kemp v. State, 13 Texas Crim. App., 561; Hayes v. State, 14 Texas Crim. App., 330; Cahn v. State, 27 Texas Crim App., 709; Gallagher v. State, 28 Texas Crim. App., 247; Powell v. State, 28 Texas Crim. App., 393; Vela v. State, 33 Tex.Crim. Rep.. Either of the definitions of `malice' above given will be sufficient in a charge, and so would any other definition of the term embracing substantially the same meaning. Martinez v. State, 30 Texas Crim. App., 129."
Appellant also again complains that this and the lower court were wrong in holding that the evidence raised the issue of provoking a difficulty with deceased by appellant. The testimony raising that issue was succinctly stated in the original opinion. There are two matters *Page 580 in connection therewith which will be here stated. He claims that the evidence shows his meeting with deceased the night he killed him was a mere casual and accidental meeting, that he did notknow that it was deceased at the time he killed him; and that the court in the original opinion, wherein it was stated that deceased and Mrs. Fehrenkamp after they began to run from him continued their flight with he and Wilson in hot pursuit until they had run him "some 200 yards" and shot him down; the complaint being that the evidence showed the distance they chased him was not "some 200 yards" but a very much shorter distance. All the testimony shows that appellant and Wilson followed and chased deceased from the point where they got out of the jitney to where the body of deceased fell. Mr. Herndon, one of appellant's witnesses, swore that this distance was "something like 150 or 200 yards." Appellant himself swore that this distance was "about anywhere between 125 and 200 yards — maybe more, maybe not so much." No other witness undertook to give this distance. However, it may be that the distance was not as much as 200 yards.
Appellant himself swore that he knew deceased "when I saw him." That he knew Bob McKinley, a brother of Roy McKinley, and had known him a good while; that shortly before the killing he saw deceased at Belton and asked him, "Aren't you Roy McKinley?" He replied he was; and he said he thought so because he looked so much like his brother Bob. It was also shown that deceased had lived in Temple for a number of years; that appellant himself had lived there one year, and that latterly he lived at Belton, only a few miles from Temple, the two places being easy and near of access, connected by an interurban car line. That his said woman, Mrs. Fehrenkamp, lived at Temple, with whom he frequently had access there. It was shown also that appellant knew deceased was then calling on and going with Mrs. Fehrenkamp and that no other person was at that time. Just a few days before this he had beat her up because she did go with deceased. Appellant swore he was hunting for Mrs. Fehrenkamp that night, and, of course must have suspected if he did not know that if he found her out from her home like he did find her that she would be with deceased and not another. He had just driven around her home and he and the other witnesses who testified on the subject said that he had the jitney man drive him down the street she lived on to almost the corner of the block beyond where she lived. He says he saw her and her sister Susie, and their respective escorts, deceased and Roy Murrell, as they turned the corner into Fourth Street at the cold storage house. The testimony clearly shows that there was an electric light in the center of the street right at this corner, and in addition, there was an electric light at the corner of said cold storage house itself, which must have made it very light. He immediately recognized them, and they immediately recognized him. They ran from him for their lives. He, with undue haste, got out of the jitney and took after them, and just after beginning the chase, Murrell swears appellant or Wilson said to them, "Run, you *Page 581 sons of bitches." Susie Murrell swore that while chasing them, just as he passed her, appellant said to deceased, "Run, you son-of-a-bitch."
From all this and other items of testimony the jury unquestionably were authorized to believe that appellant knew that it was deceased who was with Mrs. Fehrenkamp as soon as they turned the corner at the cold storage house, and took after him with his sixshooter and called to him and Mrs. Fehrenkamp both, "Run, you sons of bitches," and later to deceased himself, "Run, you son-of-a-bitch," and still chased them with the intention of forcibly taking Mrs. Fehrenkamp away from him, all for the purpose and with the intent to goad him so as to provoke him and induce him to draw his pistol, and even shoot at him, as appellant says he did, so that he could have an excuse to kill him under the pretended claim of self-defense. Even if appellant's meeting with deceased when he turned the corner at the cold storage house was casual or accidental, yet all that he did and said thereafter was wilful and intentional, and not only reasonably calculated to provoke him to attack appellant to save himself and Mrs. Fehrenkamp, but actually did so provoke him to attack appellant, if he did as claimed by appellant. The evidence clearly justified the jury to so find and believe and the question was so raised as to authorize and require the court to submit the question of provoking the difficulty as he did.
We see no necessity of discussing again any of the questions decided in the original opinion. They were all correctly decided.
The motion is overruled.
Overruled.