Appellant complains of the judgment of affirmance herein in an opinion by Judge Brooks, rendered December 15, 1909, insisting that the court should have sustained propositions 1, 2, 3, and 4 under his first assignment of error, the substance of all being that the court below should have submitted manslaughter, because of "the unmerciful whipping and punishing of his child in his presence," it being claimed that such conduct by one parent towards the child of both is sufficient to raise in the other sudden passion of the degree rendering him incapable of cool reflection. We fully concur with counsel in his view of the law thus expressed, and if the testimony warrants the hypothesis of fact indicated in the words quoted above, the motion ought to be granted. What is the situation we are to deal with? It is the settled law that if a homicide be proven unlawful, and no further proof appear, malice is implied, and the slayer is adjudged guilty of murder in the second degree. If it be sought to raise the degree of the offense, satisfactory evidence of express malice must be adduced. If that be not done. and if there be the entire absence of evidence tending to reduce the grade of the offense, the conviction must be murder in the second degree. Hence, it is not incumbent on the trial court, nor proper, to instruct upon manslaughter where there is no testimony, or where there is a mere suggestion or hint of facts that might show manslaughter. Such a mere semblance of proof or so slight proof as no sensible juror would hang a question upon. What must be shown or put in the balance of reasonable doubt before the issue of manslaughter is required to be placed before the jury? We regard the statute as plainly requiring that there must be some proof tending to show that the homicide was committed under the immediate influence of sudden passion; that there was such cause of or provocation producing the passion as would produce in persons of ordinary temper a degree of anger, etc., sufficient to render them incapable of cool reflection, and that such condition of mind was in the slayer when he committed the deed. Now, let us see the evidence offered, if any there be, bearing upon all or any of these three points. In the statement made in the motion the evidence is thus set forth: A witness for the State testified that working at least 300 yards from the house where the homicide occurred he *Page 4 heard the gun fire; that deceased was whipping the child, a girl six years old. Counsel says "inferably with a leather strap three feet long," and that the testimony tended to show that the "shooting occurred at the time deceased was whipping the child." He refers also to the testimony that there was found near the hand of deceased the leather strap. As we understand counsel, he contends that this testimony, that is, the fact that the witness 300 yards or more away heard the sound of the whipping and that deceased used a leather strap three feet long, tended to establish a probability that deceased was unmercifully whipping the child, and an inference that appellant was thereby provoked to the degree of passion that would commonly render ordinary persons incapable of cool reflection and produce that effect in him. Appellant and his counsel must have recognized the value of the fact, if such it was, that deceased was at the time or just prior to the homicide cruelly beating the child. We do not intimate that appellant should be estopped from claiming the benefit of any testimony that might tend to raise the issue of manslaughter by testifying as he did; that the whole matter was an accident, and that he knew nothing of the whipping of the child and was not mad, but was in a good humor with his wife. We find no intimation in the record that the child was injured or that her punishment exceeded what the mother might lawfully inflict in the due enforcement of parental authority, and decline to base upon the one circumstance, that licks made with a piece of bridle rein sounded out 300 yards, the presumption of all the facts and conditions, the existence of which must be at least probable in order that a homicide deemed malicious may be reduced to the grade of manslaughter. We are unable to see any semblance of negligent homicide in the testimony. Under the State's version appellant is guilty of murder. If his testimony was true or not proven to be untrue he was entitled to a full acquittal, and the court so instructed.
We do not deem it necessary to say anything regarding the third ground of the motion other than refer to the opinion heretofore rendered, and the same may be said as regards the remaining matters suggested. It is doubtless the duty of the trial court to limit impeaching evidence by written charge, but the substance of all that was testified by the State's witnesses regarding the previous troubles of appellant with his wife was his own acts. Upon the whole record and after careful consideration of the motion, which is presented with unusual force and ability, we are satisfied the judgment of affirmance ought to stand.
Overruled.
McCord, Judge, not sitting. *Page 5