The defendant was indicted in the District Court of Navarro County for the murder of James Shields. The trial resulted in a conviction of murder in the second degree.
In the view we take of this case, we do not propose to discuss all the errors assigned as grounds for the reversal of the judgment. Defendant excepts to the indictment, first, because it does not allege that James Shields died of the wounds received from, or inflicted by, the defendant; and, second, it does not allege that the said James Shields died of any wounds or injury inflicted by the defendant.
The indictment alleges that the defendant, on the fifth day of March, 1876, in the county of Navarro, and State of Texas, inflicted upon James Shields a mortal wound, “ of which mortal wound he, the said James Shields, then and there languished, and afterwards, to wit, on the tenth day of March, 1876, languishing, died.” This, we think, sufficiently charges that the death of Shields proceeded from the wounds.
The elaborate argument submitted by counsel for the defendant is sufficiently met by a simple reference to a case *641in point. In the case of Lutz v. The Commonwealth, 5 Casey, 441, where the allegation was that the prisoner inflicted upon Richard O’Leary a mortal wound, of which mortal wound he did languish, and languishing, did live: “ on which said twenty-eighth day of June, in the year aforesaid, the said O’Leary, in the county aforesaid, died.” This was held sufficient to show that the death proceeded from the wound, and was sufficiently certain for an indictment. Cited in 2 Bishop’s Cr. Proc. 530, note 31.
The record shows that the proper oath was administered to the jury. The jury-oath in a capital case, as well as in all other criminal cases, is that prescribed in Paschal’s Digest, art. 3029. Clampitt v. The State, 3 Texas Ct. App. 638.
The learned judge who presided at the trial evidently believed, under the facts testified to by the witnesses, that the defendant was entitled to the benefit of a charge on the law of manslaughter, and on this point instructed the jury as follows : “ Manslaughter is voluntary homicide, committed under the immediate influence of sudden passion, arising from an adequate cause, but neither justified nor excused by law. By the expression, < under the immediate influence of sudden passion,’ is meant that the provocation must arise at the time of the killing, and that the passion is not the result of a former provocation. The act causing death must be caused directly by the passion arising out of the provocation then given, and it is not enough that the mind is merely agitated by passion arising from some other or previous provocation. The passion here intended is either of the emotions of the mind known as anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection. By the expression, ‘ adequate cause,’ is meant 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.
“ 19. No words or gestures, however insulting, nor an *642assault and battery so slight as to show no intention to immediately inflict pain or injury, will amount to adequate cause; but an assault and battery causing severe pain or bloodshed would be adequate cause.”
The effect of the ninetenth subdivision of the charge of the court upon the minds of jurors of ordinary comprehension would be to create the impression that an assault and battery by the deceased upon the defendant would not be “adequate cause” unless it produced severe pain or bloodshed, when the law makes no such requirement, but says that an assault and battery ‘ ‘ causing pain or bloodshed ’ ’ would be adequate cause. The most natural and reasonable construction to be placed upon this portion of the charge would be that, as an assault and battery causing severe pain and bloodshed would be “ adequate cause,” the converse of the proposition would also be true,—i.e., that an assault and battery not producing severe pain or bloodshed would not be “ adequate cause.”
The charge of the court on the subject of manslaughter was calculated to mislead the jury; and for this error the judgment of the District Court is reversed and the cause remanded.
Reversed and remanded.