The offense is murder; the punishment, 15 years in the penitentiary.
Deceased and his wife went to the small beer tavern operated by appellant, and at the time of and just prior to the difficulty each was drinking a bottle of beer. Deceased played with appellant’s dog, which was in the tavern, by bouncing a ball for the dog to retrieve. Appellant appears to have objected to his playing with the dog, saying that “everybody that comes in here works that bulldog, to death.” There was also a parrot in the room. Deceased asked that the appellant wake the parrot up, so that the wife of deceased could hear it talk. Whereupon, appellant said to deceased, “Johnnie, you are crazy, I am going to get my gun and kill you,” and walked behind the bar and got a pistol, which he placed in his belt. Appellant then walked up to the deceased and his wife, at which time deceased said to him, “Slim, I am not scared of you and your pistol — we have been friends for years.”
A witness testified that this statement on the part of deceased seemed to infuriate appellant; that he thereupon struck deceased upon the left side of the head with the pistol; and that the pistol fired, the bullet therefrom passing through the head of deceased and emerging on the right side of his head.
This is the state’s case. The appellant did not testify. All the witnesses testified that appellant at the time was very drunk and had been some time prior to the homicide.
The parties were good friends. There is no testimony showing antecedent grudges, hatred, or ill-will on the part of appellant towards the deceased which would suggest a motive for the killing. In fact, the killing may be termed as unexplained.
*8The case was submitted to the jury upon the law of murder, with and without malice, and aggravated assault. The defense of accidental killing and of temporary insanity from the use of ardent spirits was also submitted.
The sole question presented is the contention that, under the facts stated, the jury was not authorized to conclude that appellant was guilty of murder with malice. Appellant, in support of that contention, urges the lack of any evidence of malice or of an intent to kill.
An intent to kill is not always essential to murder. Whiteside v. State, 115 Tex. Cr. R. 274, 29 S. W. 2d 399. The intent to kill may be inferred from the instrument and the mode and manner of its use. Phillips v. State, 152 Tex. Cr. R. 612, 216 S. W. 2d 213.
In the case of Banks v. State, 85 Tex. Cr. R. 165, 211 S. W. 217, 5 A. L. R. 600, and approved in Cockrell v. State, 135 Tex. Cr. R. 218, 117 S. W. 2d 1105, the rule stated is that the intentional doing of any wrongful act in such manner and under such circumstances as that the death of a human being may result therefrom is malice.
Such was the rule under our murder statute when that offense consisted of degrees — that is, murder in the first and second degrees. As pointed out in the Cockrell case, such rule is applicable under our present murder statute.
Here, appellant voluntarily and intentionally struck the deceased upon the head with a loaded pistol. This was the intentional doing of the unlawful act mentioned in the rule stated. That the death of the deceased may have resulted from that intentional act, by a firing of the pistol, is a reasonable and proper deduction for the jury to make and to conclude thereby that the killing was actuated by malice.
We are unable to agree with the appellant that the facts do not warrant a conviction for murder with malice.
The judgment is affirmed.
Opinion approved by the court..