The appellant killed E. 0. Driscoll on the 15th day of March, A. D. 1879, in the town of Burlington, Montague county. In June following he was indicted by the grand jury of that county on a charge of murder in the first degree. In June, 1880, he was tried and convicted of murder in the second degree. At the December term, 1880, a new trial having been awarded, he was again placed upon trial and convicted of murder in the second degree; from which judgment of conviction he appeals to this court.
There are a number of errors assigned, and reasons urged why the judgment should be reversed; but we deem it unnecessary to consider them all. A proper solution of three points raised by the record, and assigned as error by the defendant, will be all that is required for a correct disposition of this case.
*3561. Was there error in the charge, of the court upon the subject of manslaughter?
■ 2. Did the court err in.refusing to give the instructions asked by the defendant, bearing upon the right of self-defense in connection with the conspiracy between deceased and one Freeland? ■' '
• ■ 3. Did the court err in not rejecting evidence of express malice,—the defendant being on trial for murder in the second degree?-
. 1st. On manslaughter, the court below charged the jury:
£ £ Manslaughter is voluntary homicide, committed mider the immediate influence of sudden passion, arising from an adequate cause, but neither. excused or justified by law. You will see that, to reduce a killing from murder to manslaughter, the mind of the slayer-must be under the influence of a sudden passion, arising at the time of the killing, aroused by a present provocation and not the result of a former provocation. It is not enough that the mind is merely agitated by passion arising from a former provocation. Thé passion must have been aroused by an adequate cause, and the cause must be sufficient to 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, are not deemed adequate causes to reduce a killing from murder to manslaughter. ”
The only other reference to the subject of manslaughter, except when mentioned in connection with the definition of murder in the second degree, is as follows:
££If you find from the testimony that the defendant •did so shoot and kill the said Driscoll at Montague county, at any time, within three years before the 23d day of June, 1879, and if there is in your mind a reasonable *357doubt as to whether said" killing was with "malice aforethought or not, then you will acquit defendant of the charge of murder. But if you find that said killing was not in his, defendant’s, own proper self-defense, as hereinbefore defined, then you will find defendant guilty of manslaughter.”
The evidence, being of such a character as to require a charge upon manslaughter, the question presents itself: is the above charge such as the law requires? The counsel for defense objects, and we think justly, to this charge: 1st, upon the ground that it. is negative in its nature and effect; 2d, that, though it is true that insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, are not deemed adequate causes to reduce a killing from murder to manslaughter, yet, this being true as an abstract proposition of law, the facts of this case do not justify the court below in stopping with-the enunciation of this principle.
We search in vain to discover in this charge an affirmative, direct and pertinent application of the law of manslaughter to the facts of the case. Though the charge contains correct abstract propositions of the law of manslaughter, there is not the slightest attempt to apply affirmatively these principles to the evidence. Man-, slaughter is a defense to murder, as well as self-defense,—■ the former partial, while the latter is complete. The rule, applicable to all defenses, whether complete or otherwise, is that the court below "must apply the law clearly, pertinently, and affirmatively to the facts tending to support the defense." Johnson v. State, 48 Texas, 612.
The charge presenting manslaughter - negatively, the impression is natural that, in the opinion of the judge presiding, the evidence fails to support this degree of homicide. The effect of such a charge is to impress upon the minds of the jury that the presiding judge has but little if any confidence in .the evidence tending to support man*358slaughter. If the evidence made it necessary to charge upon manslaughter,— and we think it did,—the law should have been given to the jury affirmatively, and not burdened — freighted down—with negatives. And as Judge Ireland, in Johnson v. State, above cited, very properly suggests: “ After giving the law as was done in this case, the judge should have given a distinct, independent charge on manslaughter, telling the jury in a proper form that if they find from the testimony that the circumstances did exist which would reduce the offense to manslaughter, they could only find him guilty of that offense.” Johnson v. State, 43 Texas, 612.
The second objection to the charge on manslaughter is that, whilst it is true that insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, are not adequate causes, the evidence presents no such restricted issue. As a legal proposition this is correct, but these legal propositions given abstractly will not suffice. They must be applied by the court to the facts, directly, clearly, and affirmatively. Suppose there are other facts to support the theory of manslaughter besides insulting words or an assault and battery so slight as to show no intention to inflict pain or injury, would it be proper for the court to call special attention to the insufficiency of the insulting words and assault and battery, and remain silent as the grave upon the other facts? We think not. This would be giving undue prominence to a legal fact hostile to the defense, after first separating it from its immediate neighbors, the other facts which tend to support the defense. If proper to inform the jury of the fads which will not reduce, certainly it was the duty of the court to instruct them as to those which would reduce tire offense to' manslaughter.
But again, suppose the assault and battery was so slight as to show no intent to inflict pain or injury, viewed *359separate and independent of the facts which surrounded it, yet when viewed in the light of the surrounding facts — taking the assault and battery with all of the other facts,— not only an intent to inflict pain oí injury, hut a deadly intent, appears, would it be proper or just to the defendant for the court to single out the facts which would not be sufficient to reduce the offense and remain silent in regard to those which would? Most clearly not.
We are not to be understood as holding that defendant is not guilty of murder or that he is guilty of manslaughter. We are treating of the charge of the court, and not the guilt or innocence of the defendant. Every theory presented by evidence in the case demands of the court a charge thereon, whether strongly or weakly supported by the testimony. If there be evidence tending to support it, the law must be directly, and pertinently applied thereto. The jury, and the jury alone, must pass upon the strength of the evidence which tends to support the theory. Eor can the evidence be so full and complete in favor of one theory, as to preclude evidence, or excuse the court in refusing or failing to charge the law, relative to another theory.
The statement of facts tends to establish a conspiracy between deceased and one Freeland. Freeland was present, armed, and there is evidence tending to show that he fired at if he did not shoot the defendant. Under this state of facts, the counsel for defendant asked these instructions:
“If you believe from the evidence that a conspiracy was entered into between Driscoll (the deceased) and Freeland, to kill the defendant, and that defendant was stopped by Driscoll, and that it was the intention of Driscoll and Freeland, or either of them, to kill the defendant, and that they were then about to execute said conspiracy, you will find the defendant not guilty.”
By reference to the charge of the court upon the subject of self-defense it will be seen that the defendant’s *360right to defend himself is made to depend upon the acts* or demonstrations of Driscoll alone. This is the case connected or disconnected with threats. Here the charge of the court did not apply the law applicable to all of the facts of the case, for if there was a conspiracy between' Driscoll and Freeland to take the life of the defendant, and Freeland was present, any act on his part showing an intention to consummate the conspiracy would have justified defendant in acting* in his own protection. And if it reasonably appeared to him by all of the surrounding facts that Driscoll and Freeland were there acting together, he had the right to take the life of either. Whether the. charge asked was precisely correct or not, the facts were of esuch a character that this rejected charge sufficiently called the attention of the court to the subject, and, if not correct, the proper charge should have been given upon that phase of the case. We are of the opinion that, whether asked or not, it was the duty of the court to have charged the law applicable to this state, of facts. Nor was it necessary to show that the defendant knew of the conspiracy. If the evidence shows the conspiracy (and of this there is no doubt), and that Freeland was present, the defendant may have known of it, or he may have seen the conduct of Freeland, as did the witnesses who were present. This was a matter for the jury. If they believed from the evidence that defendant know-nothing of the conspiracy, nor see any act of Freeland showing the conspiracy, and the intention then to carry into execution the conspiracy to take the life of the defendant, of course the fact of conspiracy would have na bearing upon the case. This fact could have been presented to the jury along with the charge upon that subject.
The third question, and the last which we will consider,is the action of the court in receiving evidence of express malice, over the objection of defendant. . The defend*361ant having been acquitted of murder of the first degree by a verdict of murder of the second degree, and being placed upon trial again for murder of the second degree, the defendant objected to all evidence tending to show express malice. This objection we think was not well taken. The difference between express and implied malice is that the former must be shown by evidence, nor can it (express malice) be inferred from the killing alone; while the latter is presumed from the killing with a deadly weapon if not attended -with circumstances which reduce to manslaughter, or which excuse or justify the killing. It is logically impossible to prove express malice without proving malice, and if the killing be upon malice the offense is murder. In order, however, to convict of murder in the first degree, the malice must be affirmatively shown by the evidence.
Again, under an indictment for murder of the second degree, issues are formed upon manslaughter and justifiable or excusable homicide. Evidence, therefore, of express malice is evidently admissible upon those issues. For if the killing be upon express malice, the offense cannot be manslaughter or justifiable homicide. The court did not err in overruling the objection to the admissibility of this character of evidence.
For the errors of the court above indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.