(dissenting). — The offense is murder; punishment assessed at confinement in the penitentiary for ninety-nine years.
Johnnie Steadham, a negro, killed his wife, Clara Steadham. They had been married about two years. They visited the house of one Riggs. The appellant left and returned later in the evening. Upon his arrival, his wife, Riggs and his wife, and one Smith were present. It seems that the Riggs family and Smith lived in separate parts of the same house. The appellant departed about 7:30 o’clock. Before he went, his wife asked him for the key to the toilet and stated that she. was going there. The appellant went home to get his wife’s coat and shoes. On his return to the Riggs house his wife had not returned. After making inquiry for her, he went to Smith’s room. Smith came to the door which was fastened. In reply to the appellant’s inquiry as to the whereabouts of his wife, Smith said that she was not there. Appellant asked for the privilege of looking in the room and Smith admitted that she was there. The appellant heard some one in the bed room but Smith refused to let him enter. The appellant left, remarking that if Smith would not let him come in and see he would have a man there who would do so. The appellant stepped aside and made the appearance of leaving, but returned shortly. Appellant said: “I rushed right away and doubled back. When I doubled back, Bertha Riggs was standing right at the toilet door. She did not see me. She said, ‘Come on out, he is gone.’ Clara then came out of the door. She had nothing on but her slip and Bertha Riggs’ coat. I walked on behind her into the house and .jumped on her.”
*482Smith testified and denied that Clara Steadham was in his house. He also denied having any conversation with the appellant.
Bertha Riggs and her husband testified that they were in bed and that they first became aware of the trouble by hearing the deceased scream. The appellant claimed to have attacked his wife with a knife. The state presented the theory, through circumstances, that he also used an axe. This the appellant denied. After killing his wife, the appellant called up the officers and surrendered. On cross-examination the appellant said: “When I saw my wife going into Gus Riggs’ house after coming out of Smith’s house, I followed in right behind her immediately. * * * I don’t know whether she screamed at all or not, but I guess she did. * * * I don’t know whether I was wild when I saw her or not. I had a bad feeling over me. * * * When I saw her it naturally made me have a bad feeling all over me. * * * I saw her in his room. I saw her in there through the toilet door. * * * I stood there and watched her before I stabbed her with this big long knife. * * * When I saw her like that it made me crazy. I knew what I was doing before that.”
Various exceptions were addressed to the court’s charge. Among others was the use of the expression “malice may arise in a very short time as within the twinkling of an eye.” Another exception was that the court entirely omitted a charge on the affirmative defense of the appellant, namely, that his state of mind, upon seeing his wife under the circumstances, led him to believe that she was in the act of adultery.
An application for a continuance on account of the absence of Henry C. Langham was made and overruled. According to the application, the witness was under subpoena but was seriously ill with a carbuncle on his neck and was unable to leave his room. The testimony expected was the knowledge of the appellant’s reputation as a law-abiding citizen.
Bill of exception No. 5 presents no matter requiring discussion. The condition of the body of the deceased indicated thta she received a blow" on the back of the head. There was an axe in the room in which she was killed. It belonged to Riggs and was standing against the wall. There was some blood on the handle of the axe and on the axe itself. There were no finger-prints upon either of them. The state relied upon circumstances alone to prove that the appellant used an axe in killing the deceased. The appellant’s counsel stated in argument that if the axe had been the weapon used there would have been finger-prints thereon which experts could have identified. This remark of the appellant’s counsel was regarded by the trial court as inviting the remark of counsel for the state wherein he said, “Finger-prints make no impression upon an axe or axe-handle.” The statement of each counsel appears to be in the nature of evidence.
The expression “malice may arise in a very short time as within the twinkling of an eye,” embraced in the charge on malice aforethought, is *483an innovation, and so far as the writer’s information goes, has not been used in any reported case in connection with the definition of malice aforethought. In some case it might be of little moment. However, in the persent case it certainly should not have been embraced in the charge. There is no indication from the evidence that prior to the time the appellant assaulted his wife they were not on the best of terms. The only reason deducible from the evidence for his assault is that which he gave, namely, that he believed from the circumstances detailed that she had engaged or was about to engage in sexual relations with Smith. That such belief, under the circumstances, might have resulted in an assault without malice cannot be questioned. The expression that malice aforethought might occur “within the twinkling of an eye”, as expressed by the court, was susceptible of appropriation by the jury as indicating the view of the court upon the particular facts in evidence. To the mind of the writer, the use of the language criticized in the definition of malice was, under the circumstances, erroneous. Viewed in the light of the evidence, it cannot be said that it did not operate to the prejudice of the accused. The court gave no charge on the converse of malice aforethought. It is understood to be the settled law of this state that in a case where there are mitigating facts in evidence a charge is incomplete which merely submits the theory of the state and fails to present the' theory of the accused as arising from the evidence. See Craiger v. State, 48 Texas Crim. Rep., 505, 88 S. W., 208; Drake v. State, 46 Texas Crim. Rep., 448, 80 S. W., 1005, and many other cases collated in Branch’s Crim. Law, pp. 295-196. See also Branch’s Ann. Tex. P. C., p. 1101; Gaines v. State, 58 Texas Crim. Rep., 631, 127 S. W., 181, and other cases collated in section 1958.
“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 consequence of the act; and includes all of 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 aforethought denotes the state of mind of the slayer at the instant preceding the unlawful act which results in the death of his adversary. Premeditation is an essential element of malice aforethought. To warrant the jury in assessing a penalty of more than five years confinement in the penitentiary they must believe beyond a reasonable doubt that the killing was prompted by malice aforethought as above defined and explained. When a person is killed by the voluntary act of another, the one who slays is not guilty of murder with malice aforethought if, at the time the intent to kill is formed, his mind was in a condition incapable *484of that premeditation which chacacterizes malice aforethought as that term is hereinabove defined. And, unless the jury believes, beyond a reasonable doubt, from the facts and circumstances introduced before them, that at the time of the homicide the mind of the accused was in a condition to form the design to kill the deceased with malice aforethought and that the homicide was prompted by malice aforethought, the punishment of the accused, if found guilty, cannot be in excess of five years confinement in the penitentiary. That the state of mind in which a criminal act is done is an element in the extent of his guilt is fundamental, and in the recent murder statute, article 1257-a, this is taken into account in the following section of the statute: “In all prosecutions for felonious homicide the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed. Provided, however, that in all convictions under this Act and where the punishment assessed by the Jury does not exceed five years, the Defendant shall have the benefits of the suspended sentence act.”
In all criminal prosecutions of the grade of felony the trial court is commanded by law to give to the jury a written charge informing them of the law governing the particular case. Such compliance with that statute can be made alone by giving consideration to- all of the facts that may be lawfully considered by the jury. In a homicide case in which there are mitigating facts in evidence, a charge which fails to instruct the jury touching the legal effect of such mitigating facts fails to obey the command of the statute requiring a written charge.
In the opinion of the writer, the judgment should be reversed and the cause remanded.