Appellant was convicted of murder in the first degree, and his punishment assessed at death.
The facts, in substance, show that deceased and appellant had some character of relationship or cohabitation in Old Mexico, the deceased leaving appellant with the statement that she had some business in court which she had to look after, and finally, in her wanderings, came to Texas, and went to Presidio County. Appellant armed himself with a razor and began to search for deceased, and having traced her to Presidio County, the place of the homicide, and finding she was living at the time with Santos Gonzales, forged a letter of introduction from a friend of Santos Gonzales to Santos Gonzales, recommending appellant to his friendly hospitality. Santos took him home with him on the night of the homicide, the appellant never even suggesting that he was seeking deceased. Santos and appellant arrived home about two o'clock in the morning. Appellant was provided with a cot on the back porch of a one-room house where Santos Gonzales lived, and about daybreak the next morning deceased and a companion, who was living in the small house in the back yard of the main house, got up to drive a hog out of the yard. Appellant hallooed at her, but she did not see nor hear him, and paid no attention to him at all after the hog had been driven out of the yard by her. Returning to the little house where she was sleeping, deceased was seized by appellant, carried up on the gallery where appellant had been sleeping, and there in the most cruel and brutal way she was cut one or more times on the throat, and she was disemboweled by various and sundry deadly gashes with a razor, she screaming for assistance as long as she could. Appellant insists that the reason he killed the deceased was because the deceased told him to let her go, that she had to go and get breakfast for Clemente, and that, when this statement was made, it aroused appellant to great frenzy of jealousy against Clemente, and that that is the reason he killed her. *Page 449 Appellant says there was no kinship or relationship between himself and the deceased. The evidence suggests in all of its phases a malignant seeking out by appellant of the deceased with the settled purpose to kill her because she had ran away from the Republic of Mexico and come to Texas.
The appellant complains the court erred in charging on murder in the second degree. Appellant does not insist upon the issue of manslaughter in his motion for a new trial. The court, after defining what is murder in the second degree, and applying the law of said degree, gave the following as an additional charge upon said degree to the jury: "If you believe from the evidence that the defendant came to Marfa for the purpose of inducing Dolores Moreno to return with him to Ciudad Porfirio Diaz, Mexico, by persuasion, and that, while talking to said Dolores Moreno with that purpose, if you find such was his purpose, the deceased Dolores Moreno used objectionable or offending language to the defendant, and if you further believe from the evidence that the defendant then and there became angered or enraged, on account of said language, if any, of the deceased at the time, either alone or in connection with other facts or circumstances in evidence, whether such anger or rage, if any, was warranted by the circumstances or not, and that by reason of such anger or rage, if any, the mind of the defendant was not at the time cool, deliberate and sedate, and that in such frame of mind the defendant then and there formed the purpose of cutting the deceased, and then and there executed such purpose, or you have a reasonable doubt thereof, then you are charged that the defendant, if you so find, could not be guilty of any higher grade of offense than murder in the second degree, and you will acquit him of murder in the first degree." The charge certainly was very favorable to appellant, since it leaves the jury the right to find appellant guilty of murder in the second degree from the sheer fact that his mind was not cool and dispassionate. One may commit murder without being absolutely cool, deliberate and sedate. It is true these are elements of murder in the second degree, but it does not necessarily follow that, because a mind is not cool, deliberate and sedate, that it is not murder in the first degree. Evidently, from the evidence in this case, the appellant's mind was enraged at deceased, which anger had settled into a deep conviction of hatred and design to kill, but such anger would not preclude a verdict of death, as the jury gave appellant in this case.
Appellant tendered the court the following special charge: "Gentlemen of the jury: You are instructed by the court that, unless you find from the evidence, beyond a reasonable doubt, that the design of defendant to kill the deceased had not its first inception and origin in an inflamed and excited mind, incapable of such sedate, deliberate action as is essential to express malice; or unless, if such design had its first origin in said inflamed, excited condition of mind (if any), as above explained, you should find there was cooling time for passion (if any) *Page 450 before the killing of deceased, then the killing, no matter how such passion or excitement arose, can not be found by you to be murder in the first degree." There was no error in the court refusing to give this charge. It does not present in any aspect the law in any case. The first clause says "that, unless you find from the evidence, beyond a reasonable doubt, that the design of defendant to kill the deceased had not its first inception and origin in an inflamed and excited mind," etc. We presume appellant meant to say, in his charge, if it did have its first inception. Certainly, if it did not have its first inception in an inflamed and excited mind, but had a cool and deliberate purpose back of it, it could never subsequently have reached murder in the second degree or manslaughter. We deem it unnecessary to further discuss said charge.
Special charge No. 2 asked by appellant is as follows: "You are instructed by the court that unless it appear to your satisfaction, from the evidence, beyond a reasonable doubt, that the act of killing deceased was not the result of a sudden, rash and inconsiderate impulse or passion, you can not find that defendant is guilty of murder in the first degree." This charge is not the law of this case, and there is nothing in the evidence suggesting it.
Special charge No. 3, asked by appellant, is as follows: "You are instructed by the court that unless the facts and circumstances in evidence before you prove to your satisfaction, beyond a reasonable doubt, that the killing of deceased by defendant was of express malice (as already in the main charge defined to you) you will not find defendant guilty of murder in the first degree." This charge was in substance covered by the main charge.
We have discussed all of appellant's assignments of error in this record and must say that there is no error to be found in same. The evidence shows a deep seated hatred and premeditated design to pursue with relentless hate the helpless victim of appellant's wrath, which pursuit terminated in the murder and brutal killing of deceased. This being true, we do not believe the jury could rationally have come to any other conclusion than that the appellant with cool and deliberate mind and formed design took the life of the deceased, and, therefore, we think the verdict of the jury was amply warranted by the evidence.
The judgment is affirmed.
Affirmed.
ON REHEARING. June 9, 1909.