This is a conviction for manslaughter. If it was a voluntary homicide, then the conviction is correct; for the facts surrounding the killing show such an offense. But, suppose the intent to kill was wanting, under a state of facts which would make the homicide manslaughter—if the accused intended to kill—of what offense would the accused be guilty, if death ensued?
To constitute manslaughter, there must be a voluntary killing. Webster defines the word voluntary thus: “Done by design, or intention; purposed, intended; as, if a man kill another by lopping a tree, it is not voluntary manslaughter.” If, then, the homicide can not be manslaughter unless there was an intention to kill, strip the case of murder and self defense, of what offense would the party killing be guilty? In other words, the circumstances are such as to constitute manslaughter, if there was the intent to kill—if the homicide was voluntary.
How, if the homicide occurs by the use of means which are not in their nature calculated to produce death, the person killing is not to be deemed guilty of homicide, unless there was an intention to kill. But, suppose the means used were calculated to produce death, but there was no intention to kill—the sudden passion existing— would the homicide in such a case be manslaughter ? Unquestionably, it would. (Penal Code, art. 614.) Here there seems to be a conflict; for we have seen that, to constitute manslaughter, there must be an intentional killing. To reconcile this conflict, we are of opinion that, though there is no intention to kill, yet, if the means used were in their nature calculated to produce death, and the killing is under sudden passion, then the party killing would be guilty of manslaughter.
This view is strengthened by a provision of article 615, which is that, if the circumstances attending the killing show an evil or a cruel disposition, the party killing may be guilty of manslaughter, though there was no intention to -kill. We decide this proposition from all the provisions of the statute bearing upon this question: Where a homicide occurs under sudden passion, by the use of means not in their nature calculated to produce death, in the absence of an intention to kill, the circumstances not showing an evil or cruel disposition, the party killing would not be guilty of the homicide, but, self defense apart, would be guilty of some grade of assault and battery.
By reference .to the facts it will be found that there is a question raised as to whether appellant intended to kill the deceased; *387and it will also be found that an issue is presented as to whether the means used were in their nature calculated to produce death. In this state of case the trial judge should have submitted, by-proper instructions, these issues to the jury. And if the jury had failed to find the intent to kill, or that the means used were in their nature calculated to produce death, then a verdict for some grade of assault and battery may or should have been the result.
Opinion delivered November 26, 1887.■> We are by no means willing to sustain the charge of self defense; it is negative in character, when, under a well established rule, it should have been affirmative. We can not add any thing to that which has already been said by this court upon -such charges.
The judgment is reversed and the cause is remanded.
Reversed and remanded.