—It is believed that the charge of the court was calculated to mislead the jury, in not properly defining the distinction between murder in the second decree and manslaughter, and the charge upon manslaughter did not have sufficient reference to the cause before the jury.
The jury were charged, that “in murder in the second decree, the design to kill is conceived and executed in a transport of passion, which renders the mind incapable of cool reflection, and deprives it of the power to weigh well the nature and consequences of the act about to be committed.” This charge, under a certain state of facts, might not be objectionable, if there had been no sufficient legal provocation to induce the state of mind supposed in the charge. The actual existence of such a state of mind would not have reduced the killing to manslaughter, although it may have reduced the offense from murder in the first to murder.in the second degree, by withdrawing from the case the deliberate design necessary to constitute express malice. To reduce the killing from murder to manslaughter, two things must concur: there must have been provocation legally sufficient to produce passion; and such passion must in fact have been produced, which rendered the party, while under its influence, incapable of cool reflection, depriving her for a time of the power to comprehend the consequences of the act she was about committing.
If the jury, from the evidence, believed that the whipping of the child of the accused by the deceased did in fact produce such sudden anger in the accused as to deprive her of the power for a time to comprehend the effect of *711the act she was about committing, and. if in fact she had not reflected upon the matter, and had not previously formed a design against the life of the deceased, and had not before contemplated doing her an injury, but being excited and suddenly enraged, so as to deprive her of cool reflection, by the whipping of her child by the deceased, and, while so enraged as to be unable to reflect and weigh the consequences of the act she was about to commit, she struck the deceased, inflicting the mortal wound, she was not guilty of murder, but of manslaughter. And the court should have instructed the jury that the whipping of the child of the accused by the deceased was a sufficient legal provocation to reduce the offense from murder to manslaughter, if in fact, in consequence of the whipping of her child by the deceased, the accused was suddenly so enraged as to be incapable of cool reflection, and she struck, inflicting the mortal wound of which the deceased died, while so enraged; and if the jury believed that the act of the accused was to be attributed to the sudden passion under which she was laboring, and not in pursuance of a preconceived design of the accused, in thus striking and inflicting a mortal wound of which the deceased died, the accused would only be guilty of manslaughter..
The charge, it is believed, did not properly submit to the jury to ascertain from the evidence whether in fact the accused was guilty of murder or manslaughter. The statute makes it the duty of the judge to deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case. This charge is required to be given in all cases, whether asked or not. (O. & W. Dig., Art. 594; Villareal v. The State, decided at Austin, January, 1862;) [26 Tex., 107.]
The court in this charge gave no aid to the jury in determining what facts might be necessary to constitute such legal provocation and passion as might be held to render the accused incapable of acting with deliberation, and *712coolly reflecting upon, forming, and executing a design. The charge did not have sufficient reference to the cause before the jury.
By article 594 of O. & W’s Digest, it is to be seen that it is the duty of the court, in his charge to the jury, distinctly to set forth the law applicable to the case. The 3d charge asked by the defendant, to the effect, “ that if the jury believe that defendant did the stabbing under the influence of sudden passion, arising from the deceased beating her child, she would be guilty only of manslaughter,” was properly refused. It did not define the extent and effect of the passion -which might reduce the offense from murder to manslaughter. If it were admitted that the passion was induced by a sufficient legal provocation, yet this charge, if given as asked, would have authorized the jury in finding the defendant guilty of manslaughter, although in fact the accused was not so moved by the passion caused by the deceased whipping her child as to deprive her of the power of coolly forming a design and comprehending the effect of the act she was about committing. We have said that provocation alone was not sufficient; that there must be combined with the provocation such passion as for the time renders the party incapable of cool and deliberate reflection.
The judgment is reversed, and the cause.
Remanded.