The appellant and one Zach Colbath were jointly indicted for the murder of one Ed Sappington, charged to have been committed in the county of Bexar, on the 12th day of September, A. D. 1875. On the trial a severance was had, and the appellant, being tided separately, was convicted of murder in the second degree, and his punishment assessed by the jury at confinement in the penitentiary for a period of eleven years.
Motions for new trial and in arrest of judgment, in behalf of the accused, were made and overruled, and this appeal has been taken.
The first question presented is raised by a bill of exceptions to the ruling of the court overruling certain exceptions taken by the accused to the special venire from which a jury *98was selected for the trial of the case, which said exceptions are set out in the transcript.
The bill of exceptions states : “ The exceptions were taken as above stated, but an inspection of the record in regard to the jury and the mode of summoning, etc., will show conclusively that every provision of the law in regard to the jury has been strictly observed.” . This statement must be held sufficient to countervail the objections raised to the venire, when the grounds of objection are not so stated as-that we can determine the particular provisions of law it is claimed have been violated in organizing the jury. Certainly the statement of the judge, whose province it was to see that a fair trial be had, must outweigh the statements of counsel, whose duty it was to avail himself of every tangible objection to the proceedings being had ; and, in the absence of anything being shown to the contrary, we will indulge a strong presumption in favor, not only of the correctness of the rulings of the judge, but also as to the truthfulness of his statements as to the facts upon which the ruling was based. It is but fair to presume that, if the record as to the jury was not as stated, his statements would have been contradicted by the record, or some excuse would have been offered for not. producing it, and it is not claimed, either in the bill of exceptions or in the motion for new trial, that any injury resulted to the accused. on account of this ruling of the court.
The 2d bill of exceptions relates to the ruling of the .court in refusing a new trial. Looking to the motion for new trial, the 1st ground set out, it will be seen, was the overruling of the exceptions to the special, venire already considered. The 2d, 3d, and 4th grounds relate to the ruling of the court overruling .objections to the introduction of evidence, and referring to bills of exceptions and the statement of facts. From a careful inspection of these we deem the objections not well taken. For all that we can dis*99cover the evidence was properly admitted as bearing upon the issue being tried—namely, the guilt or innocence of the accused. The 5th, 6th, and 7th grounds in the motion for new trial call in question the correctness and sufficiency of the charge of the court in giving to the jury the law of the case.
The 6th ground seems to require more than a passing notice, to wit: “The court erred in not defining the law applicable to manslaughter.”
In Holden v. The State, 1 Texas Ct. of App. 225, after a careful examination of the several provisions of the Code of Criminal Procedure, and of cases determined In the supreme court of the state, bearing upon the subject, it was said:
“From these authorities we conclude, 1st, that, on the trial of a felony case, the judge who presides at the trial is responsible for the law applicable to the particular case then on trial; 2d, that the court is required to instruct the jury as to the law applicable to that particular case, as developed by the evidence adduced on the trial; 3d, that it is not indispensable that the court should charge as to different degrees of the offense charged, unless in its judgment the evidence to be passed upon by the jury renders such a charge necessary in order that the jury may understand the application of the facts to the law governing the different degrees of the offense; though, if after hearing the evidence the court should be in doubt, the law as to the loss degree should be charged ; and, 4th, that the failure to instruct the jury as to the different degrees of an offense will not necessarily be ground of reversal, unless this court, on an inspection of the evidence as shown by the record, shall be of opinion that the evidence required the instruction as to the different degrees of the offense.” 1 Texas Ct. of App. 237.
There is nothing in" the evidence as shown by the state*100ment of facts as embodied in the record, which required a charge on the subject of manslaughter, or to render the charge obnoxious to the objection raised.
Manslaughter is defined to be voluntary homicide, committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified nor excused by law. The expression under the immediate influence of sudden passion means, 1st, that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of former provocation ; 2d, the act must be directly caused by the passion arising" out of the provocation. It is not enough that the mind is merely agitated by passion arising from some other provocation, or a provocation given by some other person than the party killed; and, 3d, the passion intended is either of the emotions of the mind, known as anger, rage, sudden resentment, or terror, rendering it incapable of cool reflection.
The expression adequate cause means 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. Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, or an injury to property unaccompanied by violence are not adequate causes. Penal Code, Arts. 594-598. (Pasc. Dig., Art. 2250 et seq.)
The provocation, if any is shown, as we gather from the evidence, amounts to about this : That the deceased, on being asked where he was going, replied, “ It is none of your business,” or, as some of the witnesses say, “ It is none of your d—d business,” which, putting it in the strongest light, would not have justified a simple assault, and much less would it amount to a sufficient excuse for taking life, or even reducing the killing from murder to manslaughter.
With reference to the other grounds of objection to the *101charge of the court, as set out in the motion for new trial and in bills of exception, they are equally untenable. The charge, taken as a whole, is a correct and clear statement of the law applicable to the case, as made by the evidence, and giving to the accused the full benefit of the legal presumptions of innocence and the reasonable doubt, and also as to what acts will render those participating in the commission of crime liable as principal offenders.- The only special instruction asked on the part of the accused was given.
Another bill of exceptions was taken as to the ruling of the court overruling the motion in arrest of judgment. The grounds of the motion are the following:
1st. The indictment presents no offense against the laws of the state of Texas.
2d. The indictment is not in plain and intelligible words.
3d. Because there was no legal jury in said cause.
4th. Because the jury was not summoned in accordance with law.
This motion is not sustained by the record, if it is an offense against the laws of the state of Texas to wantonly, and without provocation or excuse, take the life of an unoffending human being.
The appellant seems to have been defended with zeal and ability on the trial below. The case as shown by the record has been examined with the care the occasion requires ; yet we are constrained to say that we see no cause to disturb the verdict and judgment rendered herein.
A careful examination of the record leaves us no room to doubt that the accused was tried by an impartial jury, upon .a sufficient indictment, before a court of competent jurisdiction, who gave the case a patient hearing, and wherein the law was clearly and ably given in the charge to the jury. He was convicted upon an abundance of legal evidence, identifying him as a participant in the perpetration of an *102atrocious crime, and the punishment affixed by the verdict and judgment was fully warranted by the evidence. The-law has been applied in letter and spirit, and the judgment will not be disturbed. The judgment of the court below is-affirmed.
Affirmed.