Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of ten years; hence this appeal.
Appellant objected to the State proving by the witness Jim Bledsoe that before the shooting by appellant in which deceased was killed, he saw Doll Baty take deceased's pistol away from him and hide it behind a stump in some grass; that the homicide occurred about 100 yards from where the pistol was hid. Said testimony was objected to because appellant was absent at the time said pistol was hid, and was not apprised of such fact. The court explains the admission of this testimony by stating that defendant proved by himself and other witnesses that deceased had a pistol at the time he was killed, by defendant, and fired said pistol at him immediately before defendant fired the fatal shot. We believe this testimony was competent to rebut the State's evidence. It could have been proven, in order to rebut this evidence, that after the homicide, in the absence of appellant, the body of deceased was examined and no pistol was found on his person or near him. Or it could have been shown that he had but one pistol, and that he left it at home. So we take it that any fact or circumstance showing or tending to show deceased did not have a pistol at the time, was competent testimony to meet the case made by appellant, to the effect that deceased did have a pistol and used it on that occasion. What we have said in regard to this bill disposes of appellant's bill of exceptions number 9, with reference to the testimony of Julius Dubose as to the finding of deceased's pistol after the difficulty.
Nor do we think the court committed any error in permitting the witness Minerva Grigsby, the mother of deceased, to testify that the *Page 115 certain waist and skirt which she exhibited to the jury were the ones worn by her on the night the deceased was shot and killed by defendant; and that said waist and skirt had blood on them, and was caused by the wound inflicted by defendant on deceased; that she was holding deceased at the time he was shot, and this caused the blood on her garments. As shown by the court, this was in rebuttal of appellant's testimony that no one was holding deceased at the time he was shot, and that Minerva Grigsby was not present when the shot was fired. The blood on her garments was merely an incident corroborative of her testimony. We do not believe the authorities with reference to the admission of the clothing worn by deceased at the time of the homicide have anything to do with this question. The evidence was not offered to show any physical marks of bullets or knife on the clothing and thus illustrate how the killing was done, but merely as an incident in connection with the testimony of the witness and corroborative of her statement.
Appellant objected to the testimony of Hayes, who was allowed by the court to state that the wound in deceased's breast was a round hole and about the size of a guinea egg; and that, in his opinion, from the examination of the size and nature of the wound in the body of deceased, the gun with which same was shot was fired within a few feet of the deceased, and that be based his opinion thereon because he had frequently seen beeves shot with a shotgun, and knew the character of wound a shotgun would make in a beef-steer when fired at close range. We do not believe it required an expert witness to state this; but was At any rate, appellant was not prejudiced thereby, inasmuch as appellant himself testified that he shot deceased with a shotgun at close the statement of a fact which occurs in the ordinary observance of men. range, being only a few feet away, and the judge's explanation shows this.
The court gave the jury the following charge: "If you believe from the evidence beyond a reasonable doubt that defendant with a deadly weapon, or with an instrument reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion, and not in defense of himself against an unlawful attack reasonably producing a rational fear or expectation of death or serious bodily injury, with the intent to kill, did shoot and thereby kill Savas Grigsby, as charged in the indictment, you will find him guilty of murder in the second degree," etc. This charge was objected to on the ground that it omitted the phrase "aroused without adequate cause," and permitted the conviction of defendant for murder in the second degree, notwithstanding the jury might have believed the killing was done in a sudden transport of passion aroused with adequate cause. And further, because the killing, under the circumstances indicated in said charge, could have been of no higher degree than that of manslaughter. And further, because said charge failed to define implied malice. In this connection it will be noticed that the court defined implied malice *Page 116 as follows: "Implied malice is that which the law infers from or imputes to certain acts, however suddenly done; thus, when the fact of an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, nor tend to mitigate, excuse or justify the act, then the law implies malice, and the murder is in the second degree," etc. There is no charge in the case on manslaughter, and no attempt made to define adequate cause. The jury are merely told in the charge, as to that, if appellant killed deceased with a deadly weapon in a sudden transport of passion, and not in defense of himself, to find him guilty of murder in the second degree. They are not even told that the killing must be unlawful; nor that the killing must be done upon implied malice in order to constitute it murder in the second degree. The law requires that before a homicide can be murder in the second degree it must be unlawfully done, and upon malice aforethought. It has been held that, when the court gives a charge defining implied malice, bounding it on the one side by murder in the first degree and on the other side by manslaughter, it is necessary, in order that the jury may understand the definition of implied malice, that the court define adequate cause which goes to constitute manslaughter. Whitaker v. State, 12 Texas Crim App., 436; Burnet v. State, 12 Texas Crim. App., 521; Neyland v. State, 13 Texas Crim. App., 536. The doctrine announced in these cases is as stated above. In Neyland's case, supra, it is said "that a jury may be instructed as to implied malice, or murder in the second degree, without involving the law of manslaughter, based on sudden passion aroused on adequate cause. However, when a charge is given defining murder in the second degree, as a killing in sudden passion without adequate cause, then adequate cause must be defined so that the jury may understand the charge on murder in the second degree." In Boyd v. State, 28 Texas Crim. App., 137, this question was again discussed, and Judge Wilson suggested a charge in the following terms: "Implied malice is that which the law infers from or imputes to certain acts. Thus, when the fact of an unlawful killing is established, and there are no circumstances in evidence which tend to establish the existence of express malice, nor which tend to mitigate, excuse or justify the act, then the law implies malice. If, therefore, you believe from the evidence that the defendant unlawfully killed the deceased and, in doing so, did not act under the immediate influence of sudden anger, rage, resentment or terror, arising from an adequate cause — that is, such as would, in a person of ordinary temper, render the mind incapable of cool reflection — the killing would be upon implied malice, and he would be guilty of murder in the second degree." We do not understand this doctrine to be overruled, but rather reaffirmed, in Childs v. State,35 Tex. Crim. 574, and Scruggs v. State, 35 Tex.Crim. Rep.. In both of said cases charges were given on manslaughter, in which adequate cause was defined, so that the jury had a criterion to determine whether or not the killing was done upon implied malice in a sudden transport of passion, with adequate *Page 117 cause. We do not believe the charge of the court on murder in the second degree was a correct enunciation of the law.
Appellant also contends that a charge on manslaughter should have been given, as the facts tend to show such a defense. We have examined the record, and from the State's case, we fail to see anything less than murder. From the defendant's standpoint it was self-defense, and there was no manslaughter in the case.
Appellant also insist that a new trial should be granted on account of the misconduct of the jury, in that they determined the amount of punishment assessed against appellant by lot. Considering the testimony of some of the jurors in connection with the result reached, it looks very much like the jury arrived at their verdict by lot. However, this is contradicted by others of the jury, who testified there was no agreement to be bound by the result reached. We do not deem it necessary to decide this question.
For the errors heretofore discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.