I can not agree with the opinion of the majority of the court on rehearing. The following is the charge of the court on manslaughter: "Section 19. The next lower grade of culpable homicide is manslaughter. Manslaughter is voluntary homicide, committed under the immediate influence of sudden passion, arising from an adequate cause, but neither justified nor excused by law. By the expression, `under the immediate influence of sudden passion,' is means: 1. The provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. 2. The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by the passion arising from some other provocation, or a provocation given by some other person than the party killed. 3. The passion intended is either of the emotions of the mind known as anger, rage, sudden resentment or terror rendering it incapable of cool reflection. 4. By the expression, `adequate cause,' is meant such as would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. An assault and battery causing pain would or might constitute adequate cause or the existence of any other circumstance or condition which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection, is adequate cause. And where several of such circumstances might be found to exist, though no one of them might be sufficient, yet all taken and considered together might, in the opinion of the jury, be sufficient to create in the mind of the party killing the above condition of sudden anger, rage, or terror rendering it incapable of cool reflection. Sec. 20. In order to reduce a voluntary homicide to the grade of manslaughter, it is necessary not only that adequate cause existed to produce the state of mind referred to, that is, of anger, rage, sudden resentment or terror, sufficient to render it incapable of cool reflection, but also that such state of mind did actually exist at the time of the commission of the offense. Sec. 21. Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty in determining that adequacy of the provocation (if any) to consider in connection therewith all the facts and circumstances in evidence in the case, and if you find that, by reason thereof, the defendant's mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law; and so in this case you will consider all the facts and circumstances in evidence in determining the condition of defendant's mind at the time of the alleged killing and the adequacy of the cause (if any) producing such condition. And in this connection you are further charged, that if you find from the evidence that at the time of the alleged difficulty the deceased, John Connell, had made *Page 165 an assault upon defendant producing pain, and that such assault, either alone or considered in connection with all the other facts and circumstances in evidence, was capable of creating in the mind of a person of ordinary temper such a degree of anger, rage, sudden resentment or terror as would render the mind incapable of cool reflection, and if you find the same created in the mind of defendant such condition at the time of the killing, the same might constitute adequate cause in the opinion of the jury. Sec. 22. Now, if you believe from the evidence beyond a reasonable doubt that defendant with a deadly weapon, or instrument reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion aroused by adequate cause, is the same is herein explained, and not in defense of himself against an unlawful attack reasonably producing a rational fear or expectation of death or serious bodily injury, did cut with a knife and thereby kill John Connell, deceased, as charged in the indictment, you will find defendant guilty of manslaughter, and assess his punishment." etc.
The only criticism of the charge, and the point upon which the case is reversed, is that portion which reads, as follows: "An assault and battery causing pain would or might constitute adequate cause." It is true that the statute makes an assault and battery causing pain or bloodshed an adequate cause, but does it necessarily follow that because the court, through inadvertence, put the words "or might" in the long, explicit and accurate charge, require a reversal of the case by this court? If so, article 723, Code of Criminal Procedure, upon which previous errors of trial courts have been held harmless, becomes, under the present ruling, a nullity. I deem it unnecessary to cite various cases were more glaring errors were committed in the charge than here suggested, in which the majority of this court have held the errors harmless, in the light of article 723. It will be seen from a casual inspection of the charge above copied that the learned judge authorized the jury to consider the blow in connection with all the other circumstances in passing upon whether defendant's mind was laboring under such a degree of anger, rage, or terror as to render it incapable of cool reflection, and that while so laboring he slew deceased. I think the construction placed upon the charge is hypercritical. This court, in the original opinion, held such error harmless, and no reason is suggested why the original opinion should not still prevail. All of the authorities cited by the majority to support the present position on rehearing were rendered prior to the passage of article 723, Code of Criminal Procedure, with the exception of Warthan v. State, 41 Tex.Crim. Rep.. In that case appellant's only reliance to reduce the homicide to manslaughter was the blow, and the court refused to charge the statute. We held, under that state of fact, that we could not say it was not injurious. But here the court charges the statute, adding the words "or might." Can it be seriously insisted that this mere inadvertence should cause a reversal under article 723, Code of Criminal Procedure. I think not. *Page 166 The original opinion affirmed the judgment on the proposition that appellant was guilty of murder in the second degree. The evidence amply warrants that verdict, and does not, to my mind, suggest manslaughter at all, since the evidence clearly indicates a conspiracy on the part of appellant to kill his father. If this be true, any error in the charge on manslaughter would be harmless. So believing, I can not agree with the opinion of the majority.