CHRISTIAN, Judge.
The offense is murder, the punishment confinement in the penitentiary for 99 years.
This is the second appeal of this case. The first appeal is reported in 288 S. W. 444. The companion case of Claxton v. State is reported in 280 S. W. 832. In the instant case appellant was convicted of the murder of Otto Junek, and in the companion case of the murder of J. M. McAlpine. Both homicides resulted from the same transaction and occurred at the same time and place. The evidence disclosed by the present record is substantially the same as that shown in the former appeal of this case and of the companion case. In the companion case, the reversal was based mainly upon an error in the charge of the court. However, in reversing the companion case, the court said that “we are not to be understood as saying that the evidence may not be strong enough to support a conviction for murder, but that the mind of the court upon an examination of this record is left in such condition that we are desirous that the evidence should be passed upon again by another jury.” The present case was formerly reversed upon an error in the court’s charge. However, a careful review of the record of the former appeal led the court to the conclusion that the evidence was sufficient to support a conviction for murder. After a reversal of the judgment of the trial court, in granting the state’s motion for rehearing, the court said:
“In the present record is the verdict of the second jury of the same nature. Upon reflection, it is believed that, in overturning the judgment of the jury and that of the trial court on the fact of mental agitation, this court, on the present record, has gone too far and should be impelled by duty to grant the state’s motion for rehearing, to set aside the judgment reversing the conviction and to order its affirmance.”
We now have in the present record the verdict of the third jury of the same nature. The facts of the instant case being substantially the same as in the former appeal (288 S. W. 444), a recital thereof would be largely repetition. We content ourselves with the statement that we find no evidence in the record in addition to that contained in the former record, which would justify a recession from our former position. It follows that we must overrule appellant’s contention that the court erred in embodying in his charge an instruction covering the law of murder. Appellant’s contention that the evidence is insufficient to sustain a conviction for murder being necessarily involved in the proposition that the court erred in submitting to the jury the issue of murder, must likewise be overruled.
Appellant brings forward numerous exceptions to the court’s charge. We deem it unnecessary to discuss but two of the propositions raised by such exceptions.
Appellant attacks the court’s definition of malice and malice aforethought as applying equally to murder and manslaughter, his position being that under the definition submitted to the jury they could not have acquitted appellant of murder, even though they believed the homicide was committed under the influence of sudden passion aroused by an adequate cause. The court defined malice aforethought as “the voluntary and intentional doing of an unlawful act by one of sound memory and' discretion, with the purpose, means and ability to accomplish the reasonable and probable consequences of the act.” The term was further defined in the succeeding paragraph as follows:
“Malice aforethought includes those states of mind under which the killing of a person takes place without any cause which will in law justify, excuse or extenuate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.”
The jury were instructed in immediate connection with the definition of malice aforethought that “malice in its legal sense
denotes a wrongful act done intentionally without just cause or excuse.”
In the recent case of Collins v. State, 108 Tex. Crim. Rep. 72, we had occasion to discuss the question presented here. In that case, as in this, the jury were instructed, in connection with the definitions objected to, that malice was “a condition of the mind showing a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.” In the Collins case, we held that where manslaughter is an issue malice should not be defined as denoting in its legal sense “the intentional doing of a wrongful act to another without legal justification,” as such definition is subject to the objection that it can be applied to both murder and manslaughter, each of those offenses involving the intentional doing of a wrongful act. See Hays v. State, 14 Tex. Crim. App. 330; Cooper v. State, 250 S. W. 185. However, we approved the definition of malice aforethought as “a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken,” and held that the objectionable definition of “malice aforethought” did not constitute reversible error. The holding in the Collins case is applicable here, and we are constrained to overrule appellant’s contention.
Appellant vigorously assails as error paragraph 12 of the court’s charge, which reads as follows:
“The jury is at liberty to determine whether under all the circumstances, the insulting words or conduct, if any, were the real cause of the killing.”
In paragraph 11 of the charge, the court instructed the jury as follows:
“You are further instructed that it is immaterial whether the deceased, Otto Junek, or J. M. McAlpine, each, either or both used insulting words to or conduct toward the daughter of the defendant, if you should find that the defendant was informed by'his daughter, Vera Claxton, or in case of a reasonable doubt thereof, that the deceased, Junek, and said McAlpine, or either of them, did use insulting words to or insulting conduct toward Carrie Gunn and that defendant believed such information, to be true, or in case of a reasonable doubt thereof, he would have the same right to act upon such information as if the deceased, Junek and McAlpine, each, either or both of them had in fact so used insulting words or conduct toward his daughter, if any.”
Paragraph 14 of the charge reads as follows:
“If you believe from the evidence, viewed from the defendant’s standpoint at the time of the homicide, or have a reasonable doubt thereof, that the defendant J. A. Claxton was informed that the deceased, Otto Junek, or that one J. M. McAlpine, while acting with Otto Junek, or that the said Otto Junek and said J. M.
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CHRISTIAN, Judge.
The offense is murder, the punishment confinement in the penitentiary for 99 years.
This is the second appeal of this case. The first appeal is reported in 288 S. W. 444. The companion case of Claxton v. State is reported in 280 S. W. 832. In the instant case appellant was convicted of the murder of Otto Junek, and in the companion case of the murder of J. M. McAlpine. Both homicides resulted from the same transaction and occurred at the same time and place. The evidence disclosed by the present record is substantially the same as that shown in the former appeal of this case and of the companion case. In the companion case, the reversal was based mainly upon an error in the charge of the court. However, in reversing the companion case, the court said that “we are not to be understood as saying that the evidence may not be strong enough to support a conviction for murder, but that the mind of the court upon an examination of this record is left in such condition that we are desirous that the evidence should be passed upon again by another jury.” The present case was formerly reversed upon an error in the court’s charge. However, a careful review of the record of the former appeal led the court to the conclusion that the evidence was sufficient to support a conviction for murder. After a reversal of the judgment of the trial court, in granting the state’s motion for rehearing, the court said:
“In the present record is the verdict of the second jury of the same nature. Upon reflection, it is believed that, in overturning the judgment of the jury and that of the trial court on the fact of mental agitation, this court, on the present record, has gone too far and should be impelled by duty to grant the state’s motion for rehearing, to set aside the judgment reversing the conviction and to order its affirmance.”
We now have in the present record the verdict of the third jury of the same nature. The facts of the instant case being substantially the same as in the former appeal (288 S. W. 444), a recital thereof would be largely repetition. We content ourselves with the statement that we find no evidence in the record in addition to that contained in the former record, which would justify a recession from our former position. It follows that we must overrule appellant’s contention that the court erred in embodying in his charge an instruction covering the law of murder. Appellant’s contention that the evidence is insufficient to sustain a conviction for murder being necessarily involved in the proposition that the court erred in submitting to the jury the issue of murder, must likewise be overruled.
Appellant brings forward numerous exceptions to the court’s charge. We deem it unnecessary to discuss but two of the propositions raised by such exceptions.
Appellant attacks the court’s definition of malice and malice aforethought as applying equally to murder and manslaughter, his position being that under the definition submitted to the jury they could not have acquitted appellant of murder, even though they believed the homicide was committed under the influence of sudden passion aroused by an adequate cause. The court defined malice aforethought as “the voluntary and intentional doing of an unlawful act by one of sound memory and' discretion, with the purpose, means and ability to accomplish the reasonable and probable consequences of the act.” The term was further defined in the succeeding paragraph as follows:
“Malice aforethought includes those states of mind under which the killing of a person takes place without any cause which will in law justify, excuse or extenuate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.”
The jury were instructed in immediate connection with the definition of malice aforethought that “malice in its legal sense
denotes a wrongful act done intentionally without just cause or excuse.”
In the recent case of Collins v. State, 108 Tex. Crim. Rep. 72, we had occasion to discuss the question presented here. In that case, as in this, the jury were instructed, in connection with the definitions objected to, that malice was “a condition of the mind showing a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.” In the Collins case, we held that where manslaughter is an issue malice should not be defined as denoting in its legal sense “the intentional doing of a wrongful act to another without legal justification,” as such definition is subject to the objection that it can be applied to both murder and manslaughter, each of those offenses involving the intentional doing of a wrongful act. See Hays v. State, 14 Tex. Crim. App. 330; Cooper v. State, 250 S. W. 185. However, we approved the definition of malice aforethought as “a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken,” and held that the objectionable definition of “malice aforethought” did not constitute reversible error. The holding in the Collins case is applicable here, and we are constrained to overrule appellant’s contention.
Appellant vigorously assails as error paragraph 12 of the court’s charge, which reads as follows:
“The jury is at liberty to determine whether under all the circumstances, the insulting words or conduct, if any, were the real cause of the killing.”
In paragraph 11 of the charge, the court instructed the jury as follows:
“You are further instructed that it is immaterial whether the deceased, Otto Junek, or J. M. McAlpine, each, either or both used insulting words to or conduct toward the daughter of the defendant, if you should find that the defendant was informed by'his daughter, Vera Claxton, or in case of a reasonable doubt thereof, that the deceased, Junek, and said McAlpine, or either of them, did use insulting words to or insulting conduct toward Carrie Gunn and that defendant believed such information, to be true, or in case of a reasonable doubt thereof, he would have the same right to act upon such information as if the deceased, Junek and McAlpine, each, either or both of them had in fact so used insulting words or conduct toward his daughter, if any.”
Paragraph 14 of the charge reads as follows:
“If you believe from the evidence, viewed from the defendant’s standpoint at the time of the homicide, or have a reasonable doubt thereof, that the defendant J. A. Claxton was informed that the deceased, Otto Junek, or that one J. M. McAlpine, while acting with Otto Junek, or that the said Otto Junek and said J. M. McAlpine, acting together, did use insulting words or insulting conduct toward Carrie Gunn, and that the defendant believed said information to be true, and such information produced in his mind either of the emotions of the mind known as anger, rage, resentment, or terror, rendering it incapable of cool reflection, and that acting under the influence of either of the said emotions of the mind known as anger, rage, resentment or terror, sufficient to render the mind incapable of cool reflection, he shot and killed said Otto Junek, at his first meeting with him after receiving said information, then the defendant would be guilty of no higher degree of homicide than manslaughter, regardless of where or the manner in which the homicide occurred.”
Again in paragraph 18, the court charged the jury as follows:
“You are instructed that in determining whether the state of mind referred to in paragraph 14 of this charge did actually exist on the part of the defendant at the time of the commission of the homicide, and in determining whether such state of mind was produced by the information received by the defendant relating to the insulting words or conduct toward his daughter, Carrie Gunn, if you find from the evidence he did receive and believe such information, you should view the transactions and conditions surrounding the homicide from the defendant’s standpoint and consider all of the conditions and circumstances in evidence, which, viewed from his standpoint, might cause such information to produce, on the part of the defendant, the state of mind referred to in such paragraph of the charge.”
Appellant asserts that the instruction given in paragraph 12 is contradictory of the instructions contained in paragraphs 11, 14 and 18, and is the reverse of and contrary to the law of the case. He takes the position that the instruction complained of is equivalent to an instruction to the jury that it was immaterial as to whether the insult and abuse were actually offered if appellant had received and believed the information thereof, but that the jury, in determining whether the offense was murder or manslaughter could be governed by their finding as to whether such insult and abuse were actually offered and were
the real cause of the homicide, since the insult and abuse could not have been the real cause of the homicide, unless they actually had been offered. In short, appellant takes the position that the instruction complained of was calculated to lead the jury to believe that before they could reduce the homicide to manslaughter they must find that the insult and abuse were actually offered and were the real cause of the homicide.
In submitting paragraph 12, the court substantially embodied therein the provisions of Art. 1251, P. C., which provides that ■ “the jury shall be at liberty to determine whether, under all the circumstances, the insulting words or gestures were the real cause of the killing.” Being inapplicable to the facts of this case, paragraph 12 should have been omitted from the charge. However, considering the charge as a whole, we do not believe the instruction contained in paragraph 12 was calculated to mislead the jury. The attention of the jury was more than once directed to the fact that it was immaterial whether appellant’s daughter had actually been insulted by the deceased, Junek and McAlpine, provided appellant had received and acted upon information believing the same to be true, and that such information produced in his mind anger, etc., rendering it incapable of cool reflection, etc. In the view we take of the matter, we are constrained to hold that under the provisions of Art. 666, C. C. P., we would be unauthorized to reverse the judgment of the trial court because of the error committed by the court in embodying paragraph 12 in the charge. It does not appear from the record that the error complained of was calculated to injure the rights of appellant and neither does it appear that appellant has not had a fair and impartial trial.
Appellant asserts that the trial court committed error in permitting the state to prove, over his objection, the details of the shooting of McAlpine and the wife of the said McAlpine. We are unable to agree with appellant that this testimony was inadmissible. Underhill on Crim. Ev. (3rd Ed.), Sec. 152, lays down the rule applicable here as follows:
“If several crimes are intermixed or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, either direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.”
That the killing of McAlpine and the shooting of the wife of McAlpine both grew out of the same transaction and were practically contemporaneous is clearly shown by the evidence. The crimes were intermixed and blended with one another and so connected that they formed an indivisible criminal transaction. Proof of the killing of -McAlpine and the shooting of his wife was a part of the res gestae of the killing of Junek. See Branch’s Ann. P. C., Sec. 2347, and authorities cited therein; also see Nichols v. State, 260 S. W. 1050.
There are numerous other complaints contained in the record which we will not undertake to discuss. However, we have carefully examined every contention made by appellant, with the result that we have reached the conclusion that no reversible error is reflected by the record.
Finding no error, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.