Conviction in District Court of Milam County of murder; punishment fixed at confinement in the penitentiary for life.
This is a companion case to Claxton v. State, No. 9512, opinion handed down during this term. The facts are very much the same as in the companion case, and we see no reason for entertaining divergent views as to the law of the case.
It is shown without dispute that on the morning of the homicide appellant shot and killed two men, one a neighbor of long standing and the other of comparative recent acquaintance, with neither of whom he had had any words or quarrel or against whom he entertained any grudge. He had a married daughter, Mrs. Gunn, who was in a delicate condition, expecting confinement. In addition to the anxiety ordinarily attendant upon such condition, said daughter was very large and fleshy and the family were concerned about her. It is shown without contradiction *Page 310 that an unmarried daughter of appellant came to the house and told him that she had just been down to her married sister's and learned that the two men who were slain, had been there and cursed and abused Mrs. Gunn and called her vile names. It is further shown that without going back to the mule and plow which he had left standing in the field, appellant took his gun and went down the road toward Mrs. Gunn's, said road leading past the place where said two men lived. McAlpine and Junek, the two men who were killed, were sitting on the porch at McAlpine's house as appellant approached. When he turned in the gate they fled and he began shooting. He shot through the door of the house, wounding Mrs. McAlpine, and also appears to have shot other times through the walls, according to the testimony of parties who inspected the premises later. He then pushed the door open, went inside, shot and killed McAlpine and pursued Junek out into the garden where he shot him through the head and body time after time with a Winchester rifle. There is not a suggestion worthy of consideration in this record that the killing resulted from other than the passion aroused by the communication of the insulting words and conduct to his daughter, or that the circumstances surrounding the homicide showed other than that it was the first meeting, and that appellant's mind was actuated alone by uncontrollable rage and anger. This is recognized by statute as adequate cause to produce in the mind of a person of ordinary temper such degree of anger, rage, resentment, etc., as to warrant the reduction of the offense to manslaughter. While it is not indispensable to a conviction for homicide that a motive be shown, and it is apparent that the killing may be attended with such circumstances as to show malice, deliberation, etc., still where the overwhelming testimony shows the existence of a state of facts which ordinarily would support only a conviction for manslaughter, and nothing in the record points to coolness, deliberative or formed design, and there appears a conviction for murder with a penalty as grave as that inflicted in the instant case, this court is unwilling to lend its sanction to such a verdict.
The fact that one of the men killed was almost a stranger to appellant; that the killing took-place within so short a time after the communication to him of the fact of the insulting conduct; the manner and method of the killing of both men, the lack of evidence of coolness and formed design, the absence of all evidence of premeditation, — seems to so strongly indicate that *Page 311 appellant was not in a condition where his mind was capable of cool reflection as to make us feel that the case ought to be reversed and remanded for another trial, and it is so ordered.
Reversed and remanded.