Willsox, Judge.
I. There is no law of this State prohibiting counsel other than the district and county attorney from appearing and prosecuting a cause in behalf of the State. It has been the practice always in this State to permit attorneys employed by private prosecutors to assist the district or county attorney in the prosecution of a case. This practice has been "known to all the legislatures that have assembled in the State, and if it be an illegal or improper practice, as is contended by counsel for defendant, it is indeed strange that it has been so long and so universally tolerated by the law-making power and sanctioned by the courts. It seems [619]*619that, in some States, this practice is not allowed. But in most of the States it is sanctioned. It is, however, the duty of the district or county attorney to reserve to himself the direction of the case. This he should never surrender to assistant counsel. (Whart. Pl. & Pr., 3555, and cases there cited; 1 Bish. Cr. Pr., 3281.) The court did not err in overruling the defendant’s objections to permitting the district attorney to avail himself of assisting counsel in the prosecution, both in the conduct and argument of the cause.
II. Grave objections are presented by counsel for defendant to the sufficiency and correctness of the charge of the court, and to the action of the court in refusing several special charges requested. These objections are all properly presented by bills of exception, showing that, at the time of the trial, the attention of the trial judge was called to the supposed defects in his charge which are now insisted upon for a reversal of the judgment.
The most serious objection urged to the charge is that it did not submit to the jury the issue and law of murder in the second degree. Tinder the charge as given, the jury had no discretion to find the defendant guilty of any grade of homicide lower than murder in the first degree. They were limited to a single alternative, that is, to find him guilty of murder in the first degree, or acquit him entirely. If tl e issue of murder in the second degree is not fairly raised by the evidence, the court did not err in declining to charge upon that grade of homicide. A charge must be tested with reference to the evidence, and it is always sufficient when it correctly and distinctly sets forth the law applicable to the evidence. (Brown v. The State, 6 Texas Ct. App., 286; Smith v. The State, 8 Texas Ct. App., 141; Berry v. The State, Id., 515; Evans v. The State, 13 Texas Ct. App., 225; Neyland v. The State, Id., 536; Smith v. The State, 15 Texas Ct. App., 139; Rhodes v. The State, 17 Texas Ct. App., 559.)
But in trials for felony the charge, to be sufficient, must contain the law and all the law applicable to every issue legitimately raised by the evidence. (Reynolds v. The State, 8 Texas Ct. App., 412; Reed v. The State, 9 Texas Ct. App., 317; Neyland v. The State, 13 Texas Ct. App., 536.) Does the evidence in this case fairly and legitimately raise the issue of murder in the second degree? If it does, the charge of the court is manifestly and materially insufficient. In stating our conclusion upon this question, we shall not recite the evidence bearing upon it, but merely express the impressions which it has made upon our minds after careful and repeated examinations of it.
[620]*620Prior to the homicide, for several days, the defendant was observed by a number of his acquaintances who testified on the trial, to be in a strange and unusual state of mind. He acted and talked like either a crazy or a drunken man. A majority of the witnesses who testified about his condition were of the opinion that he was insane, while some attributed the change in his demeanor and appearance to intoxication. All of the witnesses who were acquainted with him, and who saw and observed him during the day of the homicide, and for two or three days prior thereto, agree that he seemed to be troubled and distressed in mind, and a number of them describe him as being greatly excited and distracted, restless, looking wild and haggard, and in fact presenting the appearances of insanity. Until within a few days before the homicide he had been a quiet, sober, industrious man. This marked change in his demeanor, conduct and appearance was sudden, and was at once observed by those who were acquainted with him and met him.
It manifested itself about a week before the tragedy, and continued up to that time, seeming to grow worse upon him. He was evidently impressed with the belief that his wife was unfaithful to him; that she had become criminally intimate with another man. She had separated from him. He had broken up housekeeping in consequence, and had sold his household goods to obtain money, as he said, to send his wife to her mother in Chicago, and had arranged for her to go in company with an old friend who was going to Chicago. She had agreed to go and was to start on the day before the homicide. She afterwards refused to go, and on the very day of the homicide instituted a suit against him for a divorce. From the time his wife separated from him up to the time of the homicide, he appeared excited and distracted. He ceased working, and to some extent indulged in the use of intoxicating liquors. All his thoughts seemed to be about his domestic troubles; all his talk was about them. His purpose seemed to be either to get his wife to live with him again, or to get her to go to her mother; to get her away from the man who had, as he said, seduced her. This man, it appears, had furnished her with money with which to obtain a divorce, or with which to return from Chicago in case she went there, but she concluded not to go. This fact was known to the defendant, and he talked about it. When he committed the homicide he was alone with his wife in a room at the house where she was staying. He had gone to the house and called for her, and they went into the room together and shut the door. When they had been in the room about ten minutes pistol shots were heard in the room and she came [621]*621rushing out, wounded and bleeding. He followed her in a walk, with a pistol in his hand. She reached the fence of the back yard and fell. He went to where she was and asked her if she was dead. ^Receiving no reply, he shot himself with the pistol. She then seized the pistol and got up and ran out on the street and fell dead. He got up and went to where she was and looked at her and then walked off a little distance and remained until he was arrested. He made no effort to escape. On the day before the killing he showed a witness a pistol and remarked that he was going home, and wras going to kill his dog and then kill his wife, and if his wife wanted to go home he would send her home in her coffin. Another witness testified that on the day before the killing he saw the defendant; that he was then inquiring for a pistol, and wanted witness to go and see his wife and get her to go back to Chicago, and said if she would not go back alive he would send her back in her coffin.
We cannot help being impressed from the evidence with the conviction that for several days prior to the homicide, and at the very time of the homicide, the defendant was laboring under strong mental excitement, produced in part perhaps by indulging in strong drink, but mainly caused by his domestic troubles. Whether this mental condition was insanity, we are not now discussing or considering.
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Willsox, Judge.
I. There is no law of this State prohibiting counsel other than the district and county attorney from appearing and prosecuting a cause in behalf of the State. It has been the practice always in this State to permit attorneys employed by private prosecutors to assist the district or county attorney in the prosecution of a case. This practice has been "known to all the legislatures that have assembled in the State, and if it be an illegal or improper practice, as is contended by counsel for defendant, it is indeed strange that it has been so long and so universally tolerated by the law-making power and sanctioned by the courts. It seems [619]*619that, in some States, this practice is not allowed. But in most of the States it is sanctioned. It is, however, the duty of the district or county attorney to reserve to himself the direction of the case. This he should never surrender to assistant counsel. (Whart. Pl. & Pr., 3555, and cases there cited; 1 Bish. Cr. Pr., 3281.) The court did not err in overruling the defendant’s objections to permitting the district attorney to avail himself of assisting counsel in the prosecution, both in the conduct and argument of the cause.
II. Grave objections are presented by counsel for defendant to the sufficiency and correctness of the charge of the court, and to the action of the court in refusing several special charges requested. These objections are all properly presented by bills of exception, showing that, at the time of the trial, the attention of the trial judge was called to the supposed defects in his charge which are now insisted upon for a reversal of the judgment.
The most serious objection urged to the charge is that it did not submit to the jury the issue and law of murder in the second degree. Tinder the charge as given, the jury had no discretion to find the defendant guilty of any grade of homicide lower than murder in the first degree. They were limited to a single alternative, that is, to find him guilty of murder in the first degree, or acquit him entirely. If tl e issue of murder in the second degree is not fairly raised by the evidence, the court did not err in declining to charge upon that grade of homicide. A charge must be tested with reference to the evidence, and it is always sufficient when it correctly and distinctly sets forth the law applicable to the evidence. (Brown v. The State, 6 Texas Ct. App., 286; Smith v. The State, 8 Texas Ct. App., 141; Berry v. The State, Id., 515; Evans v. The State, 13 Texas Ct. App., 225; Neyland v. The State, Id., 536; Smith v. The State, 15 Texas Ct. App., 139; Rhodes v. The State, 17 Texas Ct. App., 559.)
But in trials for felony the charge, to be sufficient, must contain the law and all the law applicable to every issue legitimately raised by the evidence. (Reynolds v. The State, 8 Texas Ct. App., 412; Reed v. The State, 9 Texas Ct. App., 317; Neyland v. The State, 13 Texas Ct. App., 536.) Does the evidence in this case fairly and legitimately raise the issue of murder in the second degree? If it does, the charge of the court is manifestly and materially insufficient. In stating our conclusion upon this question, we shall not recite the evidence bearing upon it, but merely express the impressions which it has made upon our minds after careful and repeated examinations of it.
[620]*620Prior to the homicide, for several days, the defendant was observed by a number of his acquaintances who testified on the trial, to be in a strange and unusual state of mind. He acted and talked like either a crazy or a drunken man. A majority of the witnesses who testified about his condition were of the opinion that he was insane, while some attributed the change in his demeanor and appearance to intoxication. All of the witnesses who were acquainted with him, and who saw and observed him during the day of the homicide, and for two or three days prior thereto, agree that he seemed to be troubled and distressed in mind, and a number of them describe him as being greatly excited and distracted, restless, looking wild and haggard, and in fact presenting the appearances of insanity. Until within a few days before the homicide he had been a quiet, sober, industrious man. This marked change in his demeanor, conduct and appearance was sudden, and was at once observed by those who were acquainted with him and met him.
It manifested itself about a week before the tragedy, and continued up to that time, seeming to grow worse upon him. He was evidently impressed with the belief that his wife was unfaithful to him; that she had become criminally intimate with another man. She had separated from him. He had broken up housekeeping in consequence, and had sold his household goods to obtain money, as he said, to send his wife to her mother in Chicago, and had arranged for her to go in company with an old friend who was going to Chicago. She had agreed to go and was to start on the day before the homicide. She afterwards refused to go, and on the very day of the homicide instituted a suit against him for a divorce. From the time his wife separated from him up to the time of the homicide, he appeared excited and distracted. He ceased working, and to some extent indulged in the use of intoxicating liquors. All his thoughts seemed to be about his domestic troubles; all his talk was about them. His purpose seemed to be either to get his wife to live with him again, or to get her to go to her mother; to get her away from the man who had, as he said, seduced her. This man, it appears, had furnished her with money with which to obtain a divorce, or with which to return from Chicago in case she went there, but she concluded not to go. This fact was known to the defendant, and he talked about it. When he committed the homicide he was alone with his wife in a room at the house where she was staying. He had gone to the house and called for her, and they went into the room together and shut the door. When they had been in the room about ten minutes pistol shots were heard in the room and she came [621]*621rushing out, wounded and bleeding. He followed her in a walk, with a pistol in his hand. She reached the fence of the back yard and fell. He went to where she was and asked her if she was dead. ^Receiving no reply, he shot himself with the pistol. She then seized the pistol and got up and ran out on the street and fell dead. He got up and went to where she was and looked at her and then walked off a little distance and remained until he was arrested. He made no effort to escape. On the day before the killing he showed a witness a pistol and remarked that he was going home, and wras going to kill his dog and then kill his wife, and if his wife wanted to go home he would send her home in her coffin. Another witness testified that on the day before the killing he saw the defendant; that he was then inquiring for a pistol, and wanted witness to go and see his wife and get her to go back to Chicago, and said if she would not go back alive he would send her back in her coffin.
We cannot help being impressed from the evidence with the conviction that for several days prior to the homicide, and at the very time of the homicide, the defendant was laboring under strong mental excitement, produced in part perhaps by indulging in strong drink, but mainly caused by his domestic troubles. Whether this mental condition was insanity, we are not now discussing or considering. What we desire to arrive at now is, whether or not, under this state of facts, his mind may not have been so excited and distracted, so disturbed and unbalanced, as to create a probability that the homicide was the result of a sudden, rash conception and impulse of the mind, and not the act of a cool, calm, deliberate, sedate mind, done in pursuance of a formed design to kill.
Concerning the condition of mind which is essential to constitute express malice and .murder in the first degree, that profound jurist, Judge Moore, has furnished us with a clear and concise view of it which is, in our opinion, directly applicable to the facts of this case. We refer to his opinion in the case of Farrer v. The State, 42 Texas, 265. That case, together with the case of McCoy v. The State, 25 Texas, 33, are the leading cases in our State upon the distinction between murder in the first and second degree. They have been followed in repeated decisions by this court, and are recognized as the established law of this State.
Our conclusion is that the evidence in this case fairly raises the issue of murder in the second degree, and that the court should have submitted that issue, with proper instructions as to the law relating thereto, to the jury. “Where there is evidence (as we think there is in this case), which presents an issue favorable to the de[622]*622fendant, the trial court should not disregard it, but should accord to the accused, fully and fairly, the submission of the issue to the jury.” (Moore v. The State, 15 Texas Ct. App., 1.)
III. The charge of the court does not explain to the jury the legal meaning of malice aforethought, and malice express. It instructs them how malice may be evidenced. In view of the peculiar facts of this case, we think it was of the greatest importance to the defendant that the court in its charge should have clearly and fully defined the terms malice aforethought and express malice.
IY. We do not think the evidence raised the issue of manslaughter, and the court did not err in declining to charge upon that grade of homicide.
Y. Upon the issue of insanity, we are of the opinion that the charge of the court is sufficient, and in accordance with the doctrine established by the decisions in this State. (Thomas v. The State, 40 Texas, 60; Webb v. The State, 5 Texas Ct. App., 596; Williams v. The State, 7 Texas Ct. App., 163; Clark v. The State, 8 Texas Ct. App., 350; King v. The State, 9 Texas Ct. App., 515; Webb v. The State, 9 Texas Ct. App., 490.)
YI. There was evidence tending to prove that at the time the defendant committed the homicide he was temporarily insane from the use of ardent spirits. This evidence of itself demanded that the issue of murder in the second degree should be submitted to the jury, as it is provided by statute that such temporary insanity may be proved for the purpose of determining the degree of murder of which the defendant may be found guilty. (Acts 17th Leg., p. 9; Charles v. The State, 13 Texas Ct. App., 658.) A proper charge presenting the question of defendant’s temporary insanity, caused by the use of ardent spirits, should have been given in connection with instructions upon the law of murder in the second degree. (Erwin v. The State, 10 Texas Ct. App., 700.)
YU. We think the court erred in rejecting the evidence offered by defendant to prove the adulterous intercourse between his wife and the man Stephenson, and that recently before the homicide he had been informed of this fact. This and any other evidence which tended to show that he had reasonable cause to be excited, troubled, distracted and frenzied, that he had knowledge of facts well calculated to destroy his mental equilibrium, to dethrone his reason, to render it improbable that he could and did act with a cool, sedate and deliberate mind in committing the homicide, was in our opinion admissible.
Other errors have been assigned and presented by counsel for de[623]*623fendant in an able brief, but we consider it unnecessary to pass upon them, as they are eliminated from the case by the reversal of the judgment.
Because of the errors in the charge of the court, and the error in rejecting evidence offered by the defendant, the judgment is reversed and the cause is remanded.
Reversed and remanded,
[Opinion delivered June 24, 1885.]