In his motion for a rehearing appellant claims that in the original disposition of this case we erred in four respects: (1) In sustaining the action of the trial court in declining to sustain *Page 285 his motion for a change of venue; (2) in holding that certain evidence complained of was res gestae of the transaction and a shorthand rendition of the facts; (3) in sustaining the action of the trial court in permitting Lloyd Nowell to testify that the deceased never got the hammer of the pistol back while he was being shot by appellant; and (4) in not sustaining his objection to the court's charge on the ground that he had failed to apply the law of murder without malice to the facts.
We have again reviewed the record relative to the first three complaints in his motion but see no good reason for receding from the conclusion expressed in the original opinion.
The motion for a change of venue was hotly contested, and there was evidence pro and con which raised an issue of fact. This issue the court decided adversely to him, and unless it is made to appear from the record that the trial court abused his discretion with respect thereto, we would not be authorized to set aside his judgment.
The first and third complaints are clearly without merit.
The fourth complaint relates to the court's charge on the law of murder without malice. Appellant contends that he, in due time, objected to the court's charge because it failed to apply the law of murder without malice to the facts as required by Art. 1257c, P. C. The court did incorporate in his charge the provisions of said article.
We find also that the court, in his charge, defined murder and instructed the jury relative to the law of murder with and without malice. He defined murder without malice, and then instructed the jury as follows:
"3. You are further instructed that even though you do find and believe from the evidence beyond a reasonable doubt, that the defendant, under the instructions given you in this charge, and under the facts in evidence, was guilty of murder, but should have a reasonable doubt as to whether the defendant, in committing the offense, if he did, was prompted by 'malice aforethought,' then you should resolve such doubt in favor of the defendant, and the punishment assessed by you, if any, could not be for a longer period than five years in the penitentiary."
"5. You are further charged that though you should find the defendant guilty of murder, beyond a reasonable doubt, yet, if you believe, or have a reasonable doubt thereof, from all the *Page 286 facts and circumstances in evidence, both those occurring at or about the time of the homicide, or prior thereto, that the mind of the accused was in such condition of sudden passion arising from an adequate cause as to render it incapable of cool reflection, and that such cause or causes, if any, was such as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection, and that, while in such condition the defendant committed the offense charged, then you cannot assess a penalty of more than five years in the penitentiary."
"6. You are charged that if you believe from the evidence beyond a reasonable doubt that the defendant, L. B. (Bud) Pugh, on or about the 8th day of June, 1944, in the County of Lynn and State of Texas, without malice, as hereinbefore defined, did unlawfully and voluntarily, and not in his own self-defense, as the same will be hereinafter defined to you, kill the said Con Burns by then and there shooting him with a gun, you will find the defendant guilty of murder without malice and assess his punishment at confinement in the penitentiary for not less than two nor more than five years, but, unless you do so find beyond a reasonable doubt, you will acquit the defendant."
It occurs to us that the court's charge is not subject to the objection urged thereto. The court was not required to pick out particular facts and circumstances and tell the jury that they constituted adequate cause, because whether or not certain facts constitute adequate cause is, under the present law, a question of fact for the decision of the jury and not the court. In support of what we have said here, we refer to the following authorities: Smith v. State, 124 Tex.Crim. R.,61 S.W.2d 835; Gamez v. State, 133 Tex.Crim. R., 112 S.W.2d 196; Stapp v. State, 140 Tex.Crim. R.,147 S.W.2d 256. See also Weems v. State, 185 S.W.2d 431, where the question here raised is fully discussed.
Believing that the case was properly disposed of on the original submission, 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. *Page 287