This conviction is for murder in the first degree, with the penalty assessed at death. Deceased had formerly lived with defendant as his wife, but for some months prior to her death they had not lived together in that relation, but had disagreed and separated, and the defendant had been consorting with another woman. On the evening of February 13,1890, she was last seen alive. On the 16th, three days thereafter, her dead body was found in a thicket. Her throat was cut from ■ear to ear with some sharp instrument; her underlip was torn, and her front teeth were dislocated. At the place where her dead body was found were indications upon the ground that a struggle had taken place between her and her slayer. Ho witness testified to having seen the killing. It is a case of circumstantial evidence, the circumstances pointing strongly, .and to our minds conclusively, to the defendant as the party who inflicted upon her the wound which caused her death. It is a case, however, in which the evidence presents not only the issue of murder in the first degree, hut the issue of murder in the second degree and of manslaughter. It ap*340pears from, the evidence that the deceased went to defendant’s house; that-from his house they traveled together several hundred yards to where her dead body was found, walking side by side, as indicated by their tracks. As before stated, at the place where the body was found there were indications that a struggle between the parties had taken place. On the day after the discovery of the dead body it was noticed that one of the defendant’s fingers had been wounded, the wound presenting the appearance of" having been inflicted by human teeth, as if the finger had been caught between the teeth and pulled or jerked out with great force.
It was also proved that a coat belonging to the defendant was found in his' house shortly after the homicide, very much torn. It was the theory of the State that defendant had on this coat at the time of the homicide,, and that it was torn by the deceased in her struggle with him.
A homicide which results from a mere sudden, rash, and immediate: design springing from an inconsiderate impulse, passion, or excitement, however unjustifiable and unwarranted it may be, is not murder in the' first degree. Such a homicide is not upon express malice, because the-essential of that character of malice—a sedate and deliberate mind—is-wanting. McCoy v. The State, 25 Texas, 33; Farrer v. The State, 42 Texas, 265; Atkinson v. The State, 20 Texas, 522; Duebbe v. The State, 1 Texas Ct. App., 159.
How, in this case, if the defendant and the deceased engaged in an altercation and struggle, and the deceased seized the finger of the defendant with her teeth and was biting it, and the defendant, acting under the-influence of inconsiderate impulse, passion, or excitement caused by the-said act of the deceased, suddenly and rashly slew her, he would not be-guilty of murder in the first degree, but would be guilty of murder in. the second degree or of manslaughter, as the jury might determine from the evidence. If the injury inflicted upon his finger caused pain or bloodshed, and was inflicted by the deceased, the jury might consider this-adequate cause to reduce the homicide to manslaughter.
It is well settled that in prosecutions for murder it is the imperative duty of the court to instruct the jury upon the lower degrees of homicide, if by any possible legitimate construction of the evidence they might convict of a lower degree. It is only when the evidence" totally fails to raise an issue of a lower degree of homicide than murder in the-first degree that the court is relieved from charging upon a lower degree. Blocker v. The State, 27 Texas Ct. App., 16; Neyland v. The State, 13 Texas Ct. App., 536; McLaughlin v. The State, 10 Texas Ct. App., 340.
While we do not question the sufficiency of the evidence in this casetowarrant a conviction of murder in the first degree, we do say that, in our judgment, it presents the issues also of murder in the second degree and • of manslaughter, and that those issues should have been submitted to the-jury with appropriate instructions. This was not done, and because of." *341this failure of the trial judge to fully charge the law of the case, the judgement is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.
[Note.—Although decided at Tyler, this appeal pertains to the Austin - "branch of the court.—Rep.]