Upon the proposition that any killing resulting from a sudden quarrel involves manslaughter, and that the instant killing was of that kind, appellant bases an argument and citation of authorities in support of his motion for rehearing. We regret we can not agree with appellant's premises in this matter, and, therefore, conclude that there is no need to review his authorities. From the testimony of neither side does it appear that this killing resulted from a sudden quarrel. We stated in our original opinion the substance of the immediate surroundings of the homicide. A review of the facts leads us to no different conclusion. Neither the mother, who was killed by him, nor her children engaged in any quarrel or altercation with appellant upon which, under any rule known to us, manslaughter *Page 523 could be predicated. Threats by appellant prior to the night of the homicide, — demonstration with a gun both outside and inside of the house of deceased on said night, followed by an apparently unprovoked assault on the young son of deceased and upon her after appellant's entrance into the house, all appear from the State's case. No assault on deceased at all and only an interference in her behalf against an attempted assault upon her by her son, — appears in the case as made by the defense. This is no killing resulting from a sudden quarrel.
Appellant insists, however, that because the killing was by a blow from a chair, a weapon not per se deadly, that manslaughter was necessarily in the case and hence paragraph 8 of the charge quoted in our original opinion was erroneous, and our conclusion that there was no manslaughter in the case was likewise erroneous. Reliance is had on Johnson v. State, 60 S.W. Rep. 48; Fitch v. State, 37 Tex.Crim. Rep.; Taylor v. State, 51 S.W. Rep. 1106, and Arts, 1147, 1148, 1149 and 1150 of Vernon's P.C. It is not our understanding that by any of said articles it was intended to change the statutory definitions of manslaughter or to make any intentional killing manslaughter in the absence of sudden passion based on an adequate cause. This line of authorities was reviewed in Merka v. State, 82 Tex. Crim. 550, 199 S.W. Rep. 1123, and a conclusion reached adverse to the contention of appellant. A homicide if intentional or the result of injury cruelly inflicted, is either murder or manslaughter, dependent on the mental attitude of the slayer and not on the character of weapon used. In such case if the motive be malice, the killing is murder; if it be sudden passion arising from an adequate cause, it is manslaughter. If there be anything in any of the authorities cited by appellant, or any other cases decided by this court which hold that manslaughter is a necessary issue in a case where the killing, though intentional, is with a weapon not likely under ordinary circumstances to produce death, such authorities will be overruled. This also disposes of the third contention made by appellant, viz: that he was entitled to a charge on manslaughter under the articles above mentioned regardless of whether there was sudden passion or adequate cause. Under his third proposition appellant cites Grant v. State,65 Tex. Crim. 266, 143 S.W. Rep. 929. In our opinion appellant misapprehends the effect of the case. It seems that the trial court did not charge on any grade of assault as contemplated by Article 1149 P.C., and this court in its opinion quoted a special charge and said same should have been given, which contained and presented the substance of said article and instructed the jury that if the homicide was committed under the influence of sudden passion by means not in their nature calculated to produce death and that the accused did not intend to kill the deceased, that he would not be guilty of manslaughter but might be guilty of an aggravated assault. *Page 524 We do not understand anything in said decision to hold contrary to the views we have here expressed. It does not seem to be the purpose of Article 1149, supra, where there is a killing by the use of means not ordinarily calculated to produce death and without intent to kill, that in order to reduce this below the grade of an unlawful homicide the sudden passion producing the act must be such as renders the mind incapable of cool reflection, nor is it said that it must result from an adequate cause. There seems no necessity for discussing this article further in this connection. In an appropriate case it has application, but none here. The court in the instant case gave to the accused the full benefit of a charge submitting the law of Article 1150 and told the jury that if the accused struck deceased with a chair without the intention of killing her, whether they found the chair was a deadly weapon or otherwise, they could only convict him of an aggravated assault.
Being unable to agree with the contentions of appellant, his motion for rehearing will be overruled.
Overruled.