This is a conviction for murder of the first degree, the penalty being death.
Counsel for appellant make thirty-six assignments of error. We have had the benefit of argument in support of several of these supposed errors, and we have carefully read the record and the brief for the appellant. The conclusion reached is that there is no such error in this record as requires' a reversal of the judgment.
We desire to discuss but one question—for to discuss all of the assignments would require the writing of a small volume, which we have not the time to do—remarking, however, that each assignment has received our most careful examination.
To support the conviction the State relies upon two aspects of the case, and contends that if either be true the judgment should stand. These aspects are:
First. That Evans was sitting in a chair reading a newspaper when appellant approached him, spoke to him, and before Evans arose, with the paper still in his hand, fired and killed him.. That the killing was with a calm, sedate mind and formed design.
Second. That, conceding appellant’s version to be true, to-wit: “ That between 9 and 10 o’clock of the morning of the homicide deceased came into the store and commenced talking with Davis, and said to him, ‘ Mr. Davis, I don’t think I will need your services any longer than the 15th— and this is not all; I have it from the very best information that you have been too intimate with a lady in the house;’ that defendant replying, asked, ‘What lady is that, Mr. Evans?’ Evans replied, walking off, ‘It is enough for you to know that you quit on the 15th;’ that defendant proceeded to wait on customers; that in the afternoon, Evans being in his office sitting in a chair, defendant went to him and said, ‘I think I have a right to know what lady you have reference to.’ Evans answered, ‘ Davis, you know well enough who I refer to; and Mrs.-and Miss-are no better;’ that defendant answered, ‘ Mr. Evans, I say if you make *556that accusation you are a liar'/ that Evans replied, ‘'You are a God damned liar!’ raised up and advanced towards defendant, throwing his hand to one side as if to draw a pistol, when Davis shot him:” admitting, we say, that the above facts are true, the State contends that then other facts and circumstances demonstrate that appellant sought Evans, revived this matter relating to the women for the purpose of provoking a difficulty in order for a pretext to kill Evans; that with a cool, calm, and deliberate mind the provocation was given, or the occasion was produced, and hence there was no murder of the second degree in the case.
We have thus stated the positions of the State with a view to the discussion of the only question we desire to notice.
Under the state of case presented by the testimony of the appellant his counsel contends that the court should have submitted the question of murder of the second degree. Was it in the case? Counsel insists that it was, and that hence there was error in the charge because it failed to ' submit that degree of homicide to the jury. The learned judge submitted the question of self-defense, but only one degree of murder—the first. There was no objection to the charge for this omission, nor did counsel request an instruction upon the second degree. We have reversed a great number of judgments, in all manner of felony cases, for this omission, though there was.no charge requested, nor objection because of the omission to charge the law applicable to the different phases of the case. But in the absence of requested charges or objection for the omission, what is the rule? We are discussing-the matter upon the hypothesis that murder of the second degree is presented by some evidence in the record. The rule is stated in Bishop’s case, 43 Texas, 390, to be that if the charge is erroneous and is excepted to at the time, the judgment will be reversed. But though erroneous, if not excepted to or proper instructions requested, the judgment for this error may or may not be reversed. If the omission was a material error—one calculated to injure the rights of the defendant—though the error is called to the attention of the court first in a motion for new trial, the judgment should be reversed.
But in determining whether the error is material and calculated to injure the rights of the accused we are to look to the whole record bearing upon the subject. What was the nature of the testimony supporting the verdict? Was it cogent and overwhelming? What the character of the testimony presenting the phase or theory of the case omitted to be noticed in the charge, and upon which omission error is assigned? Was it at all reasonable? Did it present a theory which a reasonable mind could entertain, or was it supported by such testimony as was remotely calculated to destroy the State’s case, when considered in connection with the other testimony in the case as well as the charge as a whole? Was the phase of the case simply an addition to the case as made by the State, and consistent therewith, or was it in direct conflict with the State’s *557theory? These are all important matters to be considered in passing upon the materiality of the omission or error so as to properly determine whether the error was calculated to injure the rights of the accused.
What then was the nature of the State’s evidence in support of murder of the first degree? We will not repeat the testimony, but will say that upon the first phase of the State’s case it is almost absolutely demonstrated, not only by the positive evidence of several witnesses but by all the surrounding facts, that this was a calmly and deliberately planned assassination—that the appellant, with a cool and deliberate mind and previously formed design, approached Evans, who was sitting in a chair reading a newspaper, and before he could rise shot him—an unarmed man—and continued'to shoot until he was in a manner dead.
Upon the second phase of the case the surrounding facts place it beyond contradiction that appellant, if what he says is true, calmly and deliberately provoked the difficulty—produced the occasion—with but one single purpose, and that was to obtain a pretext to slay the deceased. All of the facts not only tend this way, but form a mighty torrent moving irresistibly to this conclusion.
Now, then, this being the nature of the evidence in support of the second phase of the case contended for by the State, we can concede that, what the appellant swears is true, and still, as he calmly and deliberately adopted this method to provoke the difficulty or produce the occasion with intent to slay his victim, there is not only no self-defense in the case but there is no murder of the second degree; and in view of the facts—the cogency of the facts—the overwhelming conclusiveness of the facts in support of murder of the first degree—if a charge had been submitted permitting the jury to find a less degree, no juror with the least degree of intelligence, unless corrupt, would have entertained for a moment the suggestion of any theory less than murder of the first degree. The plain, simple truth is that an honest, conscientious man can not read this record without concluding that appellant’s version of this case was sheer fabrication.
But it may be insisted by counsel for appellant that his version may be true, and that he may not have provoked the difficulty or produced the occasion for the purpose of killing deceased, and that hence this was a question for the jury, and that the jury should have been permitted to pass upon the matter under proper instructions; that while the jury may not have believed that he acted in self-defense, they may have believed his version of the facts, and found him guilty of murder of the second degree. It is possible that the jury may have believed that appellant’s theory was true, and it is possible that they may not have believed that he provoked the difficulty or produced the occasion to have a pretext to slay the deceased, and it may have been possible that murder of the second degree would have been the verdict; but there was not the most remote *558probability that the jury would have done any of these things, and hence there is not the slightest probability that the appellant was injured by the omission.
How, if counsel for appellant had objected to the charge of the court for the omission to charge murder of the second degree, or had requested a charge upon that degree, and it had been refused, there being some evidence tending to present this degree of homicide, we might have been required to reverse the judgment. This, however, is quite doubtful, because .appellant’s theory of the case tends only to meet the State’s first phase mentioned above, leaving the second position of the State unquestioned— that is, that appellant calmly,.deliberately, and very cautiously provoked the difficulty or produced the occasion for but one purpose—to kill the deceased.
As above said, we have very carefully examined the record in the light of the argument and brief of counsel for appellant, and in view of the awful verdict and judgment in this case; but we have failed to find an error requiring a reversal of the judgment. We have discussed but one question in the record, but we have given to all the others a most careful consideration, and we do not believe any of the assignments present an error for which the judgment should be reversed, and the judgment is therefore affirmed.
Affirmed.
Judges all present and concurring.
[The foregoing opinion on the original hearing of this appeal was delivered at the Tyler Term, on December 12, 1889. The motion for rehearing filed by the defense was taken under advisement, transferred to Galveston, and thence to Austin, and was finally disposed of by the opinion which follows, on June 4, 1890. The case is now reported as of the Austin Term.—Reporter.]