In October, 1883, G. W. Montzingo was killed at his home, in Houston county. He was stabbed to death with a knife by one Thomas Stanley. The killing occurred near sundown of the day. Montzingo, Stanley, defendant, and Brit-ton Turner had met together on that day in Lovelady, a town about four miles distant from Montzingo’s home. While in Lovelady, and also while returning home from there in the evening, Montzingo and Stanley had some angry words with each other about a saddle. The evidence shows no bad feeling between Montzingo and the Turners, but, on the contrary, shows that they were friendly with each other. The Turners and Stanley resided but a short distance, not exceeding half a mile, from Montzingo’s. The Turners reached home on that evening be*389fore Stanley did, and when Stanley came he told them, it seems, that Montzingo had been cursing their father. Learning this, John Turner, the defendant, was heard to remark that they would go and see Montzingo about it, at the same time using an abusive epithet toward Montzingo. Defendant, Britton Turner and Stanley then went together to Montzingo’s, and upon arriving at the gate were invited by Montzingo, who was in the gallery of his house, to come into the house. They went up to the gallery of the house, which was about fifteen feet from the gate, and defendant stepped upon the gallery, put his hand upon deceased’s shoulder, and told him that he had heard that he had been cursing and abusing his father. Deceased denied the charge, and defendant said, “there is your man,” pointing to Stanley. At this juncture both Montzingo and his wife ordered them all to leave the house and yard, which they did not at once do. Montzingo then pulled off his coat, seized a new ax handle, and advanced rapidly and angrily upon Stanley. Stanley and the Turners fell back toward the gate. Montzingo, while they were retreating, struck Stanley twice or three times with the ax handle, and, upon being struck the second or third time, Stanley cut him with a knife. There is a conflict in the evidence as .to the exact point at which the cutting occurred, whether inside or outside the yard. It is evident, however, that it took place very near the gate, ilo one was seen to strike deceased except Stanley. Defendant did not strike, or attempt to strike, the deceased, and said nothing during the rencounter between deceased and Stanley, neither the Turners nor Stanley had any other weapons that were seen, except the knife with which the killing was done.
We have recited the main facts for the purpose of making our views of the questions of law which we find it necessary to determine the more readily understood.
At the request of the district attorney, the court gave to the jury the following special instruction: “ Every man has a right to protect his house from invasion and his family from insult, and in so protecting them he has a right to use such force as may be necessary to accomplish his end, after verbal remonstrance has failed; and in the use of such force he will not be considered an aggressor or violator of the law.” Abstractly considered, this charge was correct; but when given with reference to the facts of this case, we are of the opinion that it is materially objectionable.
*390In the first place, the evidence- did not authorize the charge Upon the hypothesis that the Turners and Stanley had invaded deceased’s house. The proof was that deceased had invited them into his house. They were in his house with his consent, and were not trespassers. They were not, therefore, guilty of an invasion of deceased’s house in the sense in which that word was used in the charge, and it was error to convey the impression, as we think this charge does, that the entry of defendant and his companions into deceased’s house was an invasion of it; that is, an unlawful, unauthorized entry, when the evidence showed the entry to have been with the consent and upon the invitation of the deceased. Secondly, having instructed the jury that the deceased had the right to use such force as might be necessary to expel these parties from his premises, without himself becoming the aggressor or violator of the law, the jury should have been further instructed in this connection that if deceased used greater force or more dangerous means than were necessary to effect their expulsion, he thereby himself became an aggressor and violator of the law, and no longer entitled to the immunity which the law up to that point had afforded him in the defense of his castle. We think the evidence in this case clearly demanded this further explanation of the law, to be considered by the jury in connection with the special charge given. (1 Bish. Crim. Law, sec. 859; Whart. on Homicide, secs. 552, 419, 420; McCoy v. The State, 3 English, Ark., 451.)
Another special charge given to the jury at the request of the district attorney is as follows: “If you believe from the evidence that defendant and Britton Turner and Tom Stanley went to the house of deceased, and cursed and swore and. raised a disturbance in the yard of deceased, and were bid by deceased to leave and refused to do so, then deceased had a right to use all necessary force to put them out of his yard, and if they resisted such force they cannot justify such resistance on the grounds of self-defense.” This charge is also correct in principle, but it does not go far enough. Suppose the jury should believe from the evidence that deceased used more force than was necessary to expel the parties, what were the rights of these parties then? Under the evidence in this case this was a most important inquiry, a most vital issue, and should have been clearly, fully and pointedly submitted to the jury by proper instructions from the court. If the deceased, in ejecting Stanley *391from his premises, used greater force than was necessary, he thereby, as we have before stated, himself became an aggressor; and to the extent of protecting himself against this excessive force the law would accord to Stanley the right of defense. This phase of the case was not submitted to the jury, and yet the evidence plainly requires that it should have been, (Whart. on Hom., sec. 552; State v. Sloan, 47 Mo., 604; Guschia v. The State, 53 Ill., 295; King v. The State, 13 Texas Ct. App., 277.) If Stanley acted in self-defense, and was justifiable in slaying the deceased, this defendant was also guiltless of the homicide.
These special charges, given at the instance of the district attorney, were not excepted to by defendant at the trial, nor did he ask any additional instructions, but he complained of said special charges in his motion for a new trial, and also complained that the court had failed to give to the jury all the law of the case. In our opinion the said special charges, given in the manner in which they were, separate from the main charge, and separate from each other, and without being accompanied with a further exposition of the law, in case the jury should believe from the evidence that deceased had used more force than was necessary to eject Stanley, were calculated to mislead the jury, and to materially prejudice the rights of this defendant.
It is further objected to the charge of the court that it is defective in not properly defining implied malice. Upon this subject the charge is as follows: “Implied malice is that inferred by law from the facts and circumstances proved in every case of intentional homicide, when the evidence fails to show that it was committed under the immediate influence of sudden passion arising from an adequate cause, or that it was excusable or justifiable in law.”
In Harris v. The State, 8 Texas Court of Appeals, 90, implied malice is thus explained: “ When the fact of unlawful killing is established, and there are no circumstances in evidence which may tend to establish the existence of express malice, nor which may tend to mitigate, excuse or justify the act, then the law implies malice, and the offense is murder in the second degree.” This definition has been repeatedly approved by subsequent decisions of this court. (Douglass v. The State, 8 Texas Ct. App., 520; Neyland v. The State, 13 Texas Ct. App., 536; Reynolds v. The State, 14 Texas Ct. App., 427.)
It will be noticed that the definition given by the learned judge in his charge and that given in the Harris case are not *392substantially the same. Where a homicide is committed under “mitigating circumstances ” malice is not implied, although the homicide may be neither excusable or justifiable. The charge omits this qualification in explaining implied malice, and in Neyland’s case, supra, such an omission was held error. It is true that the charge excludes from the definition of implied malice a homicide committed under the immediate influence of sudden passion arising from an adequate cause, and this, it may be contended, would supply the omission of “mitigating circumstances.” Whether this be so or not, it is always best to follow as near as practicable the well settled rules of the law in framing a charge upon such points, as there can then be no embarrassing questions raised as to the sufficiency of the charge in respect to such matters.
Because we think the court erred in giving, without further explanation, the two special charges requested by the district attorney, the judgment is reversed and the cause is remanded.
Reversed and remanded. t
Opinion delivered June 4, 1884.