The court submitted the case to the jury upon the issues of murder in the first degree, second degree, manslaughter and self-defense. The jury acquitted of murder in the first degree and convicted of murder in the second degree.
With reference to malice, among other things, the court gave this charge: "Malice is always a necessary ingredient of the offense of murder in the second degree. The distinguishing feature, however, so far as the element of malice is concerned is: That in murder in the first degree malice must be proved to the satisfaction of the jury beyond a reasonable doubt as an existing fact, while in murder in the second degree malice will be implied from the fact of an unlawful killing." Applying the law to the case, the court thus instructed the jury: "Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, on or about the time charged in the indictment with his implied malice aforethought, with a pistol, said pistol being a deadly weapon or instrument reasonably calculated and likely to produce death in the mode and manner of its use, with the intent to kill, and not in self-defense did shoot and thereby kill the said Rufus C. Weiss, as charged in the indictment, you will find him guilty of murder in the second degree and assess his punishment at confinement in the penitentiary," etc. Objections were urged to both charges with reference to the matter of malice and the constituent elements under the charges as given as to murder in the second degree. It is not a correct proposition that murder in the second degree will be implied from the fact of an unlawful killing. It may be implied, but in order to constitute murder in the second degree, malice will not be implied as a matter of law from an unlawful killing. Implied malice may exist, or will be the subject of implication or conclusion where murder in the first degree is not shown to exist, and where the facts do not mitigate, excuse or extenuate or justify the homicide. Malice as a predicate for murder in the second degree *Page 300 may be implied, and the jury might be justified in arriving at the conclusion that the killing was upon implied malice, where manslaughter, negligent homicide and self-defense are not part and parcel of the evidence or of the case. Manslaughter is an unlawful killing; negligent homicide is also an unlawful killing, and under some circumstances accidental homicide may be an unlawful killing. Therefore, it is not correct to charge the jury that in murder in the second degree malice will be implied from the fact of an unlawful killing. Following this definition the court intensified this error by informing the jury that implied malice aforethought is where the killing occurred with an instrument reasonably calculated to produce death and does produce it in the manner and mode of its use when this killing is not done in self-defense. This, taken in connection with the previous charge of the court, that malice will be implied from an unlawful killing, would justify and authorize the jury to find the killing upon implied malice aforethought, even though the facts should show it was manslaughter, or any other inferior degree of a culpable killing. Under the definition given the jury was justified in convicting appellant of murder in the second degree upon implied malice if they should find that the killing was unlawful from any standpoint, and in the application of the law to the facts this matter is not correctly presented, but the jury is left to conclude that although the killing might have been manslaughter or otherwise unlawful, yet it would be implied malice because it was unlawful, this being intensified by the court only qualifying malice aforethought when the homicide was justified in self-defense. Appellant was given forty years in the penitentiary for murder in the second degree. What effect this may have had upon the jury is conjectural, but the verdict of the jury is not in any sense conjectural. This charge may have tended to enhance the punishment above the minimum of five years. This error is of sufficient importance to require a reversal of this judgment.
Another question is suggested by a bill of exceptions, which recites, in substance, that while Dr. Mahaffy was testifying for the State, and after it had been developed that he had not seen the body of deceased until the next day after the homicide, and although there had been no evidence introduced that the condition of the wounds in the deceased's body was the same at the time said witness saw same as they were shortly after they were inflicted, the witness was permitted to testify, in substance, that the wounds indicated that the bullets entered from the rear. It is also recited in the bill, in this connection, that, inasmuch as a day's time had elapsed between the killing and the examination of the deceased by the witness, and that the witness had no evidence that the wounds were in the same condition at the time of the examination as when inflicted, and further that it had been shown and would be more fully shown during the trial, that cotton had been stuffed in the wounds, which had changed their condition and which had enlarged the same so that the wounds in front appeared larger than the wounds in *Page 301 the back of the body. This bill does not present the matter as clearly from the facts as should have been. If the wounds had been enlarged in front by treatment of any sort, either by insertion of cotton or by a surgical operation, we are inclined to hold that the testimony of Dr. Mahaffy, so far as this phase of the case is concerned, would not be permissible. If wounds have been in any way tampered with before the expert or other witness undertakes to testify as to the condition of the wound, then it would be improper for the witness to testify or give his opinion as to whether the shots entered from the front or rear. It is permissible to elicit evidence that the ball entered from the rear and passed out in front, or in front and passed out at the rear, but this would not be so where after the infliction of the wound and before the witness undertakes to describe it, said wound had been tampered with as to change its original appearance or condition. It seems to be generally thought, and stated as a general rule, that the exit of the wound is larger than its entrance, yet this does not seem to be the invariable rule, but where the wound made by the supposed exit of the ball has been tampered with and enlarged by that means, then such testimony ought not to be permitted to go to the jury.
Another bill recites that while appellant was testifying in his own behalf on cross-examination, the county attorney was permitted to elicit from him that there were quite a number of Mexicans and negroes in his section of the country during the fall of 1911, the year before the homicide, and that there was a good deal of gambling going on in that neighborhood at that time. It would not be relevant testimony, that a year prior to this homicide there had been a good deal of gambling in that country among negroes and Mexicans. This may have been and doubtless was prejudicial to appellant's case before the jury. He ought not to have been held responsible in this homicide case for such gambling transactions among negroes and Mexicans.
Another bill recites that Edgar Johnson testified for the defendant, among other things, that the deceased had made threats against the life of defendant, which he, witness, had communicated to the defendant. While this witness was on the stand the county attorney asked him if while talking to the witness Frazier and other counsel on the night previous to his testifying, he had told either of those gentlemen about any threats which he had heard deceased make concerning the defendant. Various objections were urged, but they were overruled, and the witness was required to testify that on the previous night the county attorney had talked with him and during that conversation said Johnson had not informed him and the other counsel about any threats he had heard deceased make concerning defendant. This testimony was illegal and improperly admitted. In the case of Hyden v. State, 31 Tex.Crim. Rep., this question was before the court, and it was held that where a witness did not state at a former trial or on former occasions the same fact that he states at the pending trial, it is not a contradiction when there is no inconsistency between his statements on the two occasions, *Page 302 or when his attention was not called on the prior occasion to the new matter about which he speaks at the pending one. In support of this cases were cited, among others, Lewis v. State, 15 Texas Crim. App., 647. In order to contradict a witness in regard to this matter, it should or ought to be shown in some way that the matter was called to his attention. The mere fact that the witness fails to tell everything connected with a matter about which he testifies at the pending trial does not afford grounds for impeachment unless brought within the rules above announced. A mere failure to state all of the facts is not necessarily a contradiction. As was said in the Hyden case, supra: "The strongest light in which the matter can be regarded in favor of the prosecution is that Mrs. Hyden omitted to state on the examining trial the facts inquired about in the predicate laid for her impeachment. Her testimony on the final trial and the evidence omitted on the examining trial are entirely harmonious, and are in no way contradictory. On the examining trial she was not questioned with reference to the evidence inquired about in relation to which she was sought to be impeached on the final trial. Had she, on such examining trial, been interrogated in relation thereto, and failed or refused to testify in regard to it, or had then denied it, or had been cautioned to tell all she knew in reference to the matters then under investigation, and had failed or refused to do so, the impeachment would have been permissible. But, on the other hand, if she had on such examining trial testified as she did on the final trial, and at the time of the proposed impeachment, or if she had not on such examining trial been interrogated in reference to that matter, and had not been requested specially to state all the facts within her knowledge touching such matters, she could not be so impeached." The Hyden case lays down the correct rule, and has not been questioned by any subsequent decision in this State. In fact, it seems to have been followed wherever the question has been before the court. The rule is a correct one, whether it had ever been decided or not.
There are some other matters presented for revision, among them the refusal to continue the case and newly discovered evidence. These questions involve quite a lengthy part of the record, but as they will not arise upon another trial as here presented, we deem it unnecessary to to discuss them.
The judgment is reversed and the cause is remanded.
Reversed and remanded.