It is earnestly insisted in appellant's motion for a rehearing, that we should have held that the evidence did not properly support the verdict of an assault with intent to murder. The able brief of appellant sets out substantially all the evidence for both sides of the case. Ordinarily, in determining the sufficiency of the evidence, inquiry will be made by us only as to the sufficiency of the proof made by the State, and if therefrom it appears that the verdict is supported, we will uphold the judgment, upon the well settled rule that conflicts in the evidence are for the jury, and that their settlement of merely conflicting issues, should not be disturbed by us.
In this case it is shown by the testimony for the State that deceased was cut by a knife in the hands of appellant; that a difference over some turkeys had existed for some little while between appellant and Mrs. Rosseter, the mother of deceased. On the day of the killing, deceased and his mother drove up to a point in the road near the store of appellant, and called him out. A conversation *Page 346 occurred between the three, which terminated in a statement by appellant to Mrs. Rosseter, in a harsh and angry tone, as stated by the witness Edens, who is corroborated by the witness Barrow in saying that appellant talked, to him, like a madman. Thereupon, deceased said to appellant, "That is my mother you are talking to that way;" and appellant turned to deceased and said, "You come here hunting trouble, and I will just cut you in two," and jerked out his knife; and the two men struck at almost the same time — deceased with his hand, and appellant with a knife. Only one blow was struck by each. Deceased was cut in the breast, and died some thirty days later.
Nothing appears in the record from the State's evidence which would justify us in holding that there was any adequate cause to produce some uncontrollable emotion in the mind of appellant, nor is such mental condition on the part of the appellant testified to by any witness. Appellant did not testify in his own behalf. On the contrary, there is evidence sufficient to show a deadly attack by appellant, preceded by a serious threat on his part, and, under our Code, malice may be conceived and executed in the shortest possible time. So that we would hold it sufficiently shown by the State that all the elements of an unjustifiable homicide existed in the case. We are cited to no authorities by the appelant, holding by analogy to the contrary.
Appellant insists that we should have sustained his third assignment of error, as contained in his brief. An examination of the same shows a mere reference in the brief to the third ground of his motion for a new trial, as constituting his third assignment of error, and by reference to the record, said third ground of the motion for a new trial covers two pages of the transcript. The matter therein contained has reference to the action of the court in permitting the State's attorney to ask appellant's witness England, if he did not hear the son of appellant say to him immediately after the fatal difficulty, "You ought not to have cut him," and in permitting the State to attempt to refresh the recollection of this witness, when he answered that he did not remember, by showing to him a book containing grand jury evidence, and requesting him to read certain marked portions thereof. As stated by us in the original opinion, after this book was shown to the witness, he further stated that he did not remember having made the statement inquired about, and there the inquiry ended. Neither the book nor its contents were introduced in evidence. We held that the facts shown by this bill of exceptions did not constitute error. In our citation of authorities in support of this part of the opinion, appears the citation of Kelley v. State, 37 Tex.Crim. Rep., which was an erroneous citation, as no such case appears in said volume at said page. The statement attributed to the son of appellant, which is under discussion, was one which was made directly to appellant immediately after the occurrence, and while *Page 347 the son was escorting his father away from the scene of the difficulty, and in our opnion the same was a res gestae statement, and one which called for a reply or explanation from appellant, and none being made, his silence would have been a fact to be considered by the jury for what it was worth, hence the attempted predicate was not as to an immaterial matter.
It is further contended that the trial court should have given special charge No. 1, to the effect that the jury should find the appellant not guilty of murder, or assault to murder, but should simply consider whether or not appellant was guilty of manslaughter or aggravated assault, or not guilty. It is manifest from the record that the trial court did not err in refusing this special charge. Appellant's chief argument in support of this contention seems to be that unless it appear from the evidence that deceased came to his death as the result of negligence of the nurses or physicians attending him — or, in other words — unless it appear that death resulted, not from the act of appellant, but from some other intervening cause, the verdict could not legally be assault to murder. As we understand it, the very charge No. 1, the refusal of which is here complained of, by its language answers the argument. Manslaughter, which this charge seeks to have considered by the jury, necessarily implies death as the result of the act of the accused, the only difference between murder and manslaughter being the well-understood difference in the mental attitude of the accused at the time of the homicide. Murder, under our code, includes every degree of homicide and of assault, and in this case the trial court submitted murder, manslaughter, assault to murder, aggravated assault, and self-defense; the decision as to the degree of offense one shall be found guilty of, if at all, is for the jury, and if they err in giving a verdict in favor of a less degree, we know of no authority which gives to appellant any right or ground of complaint. — Campbell v. State,65 Tex. Crim. 418, 144 S.W. Rep., 966. No authorities in support hereof are cited by appellant.
Nor do we agree with the learned counsel, who urge that dying declarations are only admissible in homicide cases, and that this appellant, having been acquitted of homicide by this verdict, the admission of the dying declaration of deceased should be held reversible error. Appellant was on trial for murder, and in such case the introduction of no evidence admissible on such trial would cause a reversal because of a conviction for a lower degree of such offense. In addition to what we have just said, we find nothing in the dying declaration which appears in the record, raising any issue not fully upheld by the other testimony in the case.
Believing the original opinion a correct expression of the law of this case, the motion is overruled.
Overruled. *Page 348