Under an indictment charging him with the murder of Albert Sheldon appellant was convicted of manslaughter, with punishment annexed at five years in the penitentiary.
As made by the evidence the defense was on account of insulting and grossly slanderous remarks and statements made by deceased about the wife of defendant. The killing occurred in a very short while after defendant was told of these statements. On this appeal the principal grounds of complaint are based upon supposed errors contained in the charge of the court to the jury.
With regard to the charge, it is provided that it shall distinctly set forth the law applicable to the case. (Code Crim. Proc., art. 677.) If it fails to do so, and an exception is reserved to it and shown by bill of exception, on appeal to this court, “then it is the duty of this court to reverse the case for the error, without further inquiry as to the effect such error may have had upon the result of the trial.” (Code Crim. Proc., arts. 685, 686; Mace v. The State, 9 Texas Ct. App., 110; Vincent v. The State, id., 303; Williams v. The Stale, 10 Texas Ct. App., 8; McGrew v. The State, id., 539; Maddox v. The State, 12 Texas Ct. App., 429; Mason v. The State, 15 Texas Ct. App., 534; Goode v. The State, 16 Texas Ct. App., 411; White v. The State, 17 Texas Ct. App., 188.)
In this case the charge was promptly excepted to by defendant, when given. Let us inquire in what particulars, if any, it is erroneous, and, inasmuch as appellant was convicted of manslaughter, we will address ourselves to that part of the charge relating to manslaughter. The statutory definition and the statutory explanation of terms used in the definition were given as they are found in the Penal Code, arts. 593, 594, 595, subdivision 4, of article 597, and articles 598, 600, and 602, with this difference, that in copying article 594, subdivision 1, the word passion is substituted for the word “provocation,” where it is said that “ the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation.” ■ i
The question is: where “insulting words or conduct of the person killed towards a female relation of the party guilty of the homicide” is the adequate cause relied on to reduce a homicide from murder to the grade of manslaughter (subdivision 4, art. 597), is it not erroneous to charge “ that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation,” as is explained in subdivision 1, article 594? We think so. This very question was discussed in the Eanes case, 10 Texas Ct. App., 445, and it was there said that “ the general rules with regard to ordinary cases of manslaughter are necessarily *175modified by our statute in permitting this defense. It is expressly provided that ‘ insulting words or conduct of the person killed towards a female relative of the party guilty of the homicide’ (Penal Code, art. 597, subdiv. 4) shall be deemed an adequate cause to reduce a homicide from murder to manslaughter. Not only so, but the statute further provides that such cause shall be deemed sufficient if it is made to appear ‘ that the killing took place upon the happening of the insulting conduct or the uttering of the insulting words, or so soon thereafter as the party hilling may meet the person hilled after having been informed of such insults.’ (Penal Code, art. 598.) Thus it will be seen that one of the principal ingredients or elements of ordinary manslaughter, viz., ‘that the provocation must arise at the time of the commission of the offense and that the passion is not the result of a former provocation,’ is not applicable to a case where the insulting words or conduct were not indulged in in presence of the slayer, for he (is not required personally to have heard them and) may kill on the first meeting after learning that the provocation, of which he personally knew nothing, had been committed. Up to the time of the first meeting the law prescribes no limit to the subsidence of the passion supposed to be éngendered by the information received.”
In such a state of the law it is certainly calculated most seriously to mislead and confuse a jury to tell them “ that the provocation must arise at the time of the commission of the offense, and that the passion must not be the result of a former provocation.” Because, as we have seen, such provocation may and generally does arise before the commission of the homicide, and the passion is ordinarily in fact the result of a former provocation. ( Whaley v. The State, 9 Texas Ct. App., 305.)
To our minds this portion of the charge of the court was erroneous and entirely inapplicable to the facts of this case, and we find it not only used abstractly as part of the definition of manslaughter, but it is reiterated in the court’s direct application of the law to the facts, in the fifteenth paragraph of. the charge. It is unnecessary to notice other objections to the charge, as the one already discussed is the most serious one, and, being erroneous and excepted to at the time it was given, will necessitate a reversal.
It may be well enough to notice the question raised for the first time in the motion in arrest of judgment, to the sufficiency of the indictment. One of the grounds of said motion was that the indictment did not show upon its face nor aver in terms that it was presented in the district court. Such an objection, as has frequently *176been held, is one going to the form and not the substance of the indictment. It would be good, and could be availed of on a motion to quash (Thomas v. The State, 18 Texas Ct. App., 213, and authorities there cited), but, not being matter of substance, a motion in arrest would not reach it. “A motion in arrest of judgment shall be granted upon any ground which would be good upon exceptions to an indictment or information for any substantial defect therein.” (Code Grim. Proc., art. 787.)
For error in the charge of the court, as above pointed out and discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered October 28, 1885.]