Clark, J.
In the determination of the novel and somewhat intricate questions involved in this case, as they arise upon the record, we are aided but little by the adjudged cases, or the writings of learned jurists who have made the-department of criminal law their special study. So far as we have been able to ascertain by an investigation necessarily hurried- and unsatisfactory, no case occupying the-precise attitude of this has as yet come up for decision and the general principles of criminal law, as found in the-books, fail to supply us with rules for guidance, well-defined and established, and directly applicable to the issues arising upon the facts in proof. In determining the law of the case, therefore, we must deduce our conclusions from the-light of reason, unaided except it may be by certain established principles which may serve to fix the law of the case as applicable to certain portions of the transaction.
Upon the various issues legitimately arising from the evidence, it was competent for the jury to have found their verdict for murder in either degree, or for manslaughter, or justifiable homicide in self-defence ; and it was therefore incumbent upon the court to submit instructions applicable to-either of these deductions, and embodying with substantial accuracy the peculiar principles of law which should govern them in determining intelligently the particular offence of which the defendant was actually guilty under the law and beyond a reasonable doubt. Without attempting to set out with literal verbal accuracy these several issues, the law governing them may be briefly stated as follows : —
[199]*199If the defendant and John Guffee, anterior to the original difficulty between John Guffee and the deceased, conspired, together and agreed with each other to slay the deceased upon a favorable opportunity, and in pursuance of such common purpose and design, and after acts done indicating a preparation therefor and flight thereafter, John Guffee, by the procurement or consent of the defendant, brought on the original difficulty between himself and the deceased, for the purpose of affording a pretext for the one or the other to execute the common purpose, and by prearrangement the defendant came upon the scene, and, seizing upon the first favorable opportunity, executed his preconceived design and slew the deceased, then, if the jury believed this state of facts to exist beyond a reasonable doubt, their verdict was correct, and the defendant was properly convicted of murder in the first degree. Or if, after the termination of the first difficulty between John Guffee and the deceased, the defendant, being informed thereof and in a state of mind sufficiently calm, and self-possessed to consider of and contemplate the nature of the act about to be done, agreed with John Guffee to slay the deceased, or with mind sedate and deliberate formed the design to slay the deceased without any agreement with John Guffee, and in pursuance of such formed design and purpose proceeded to the scene of the difficulty, and upon a favorable opportunity carried his design and purpose into execution, in the absence of any fresh provocation upon the part of the deceased, then he was certainly guilty as found, if such facts existed beyond a reasonable doubt. And further, if the defendant, with a sedate and deliberate mind, came upon the scene of the difficulty with the formed design to take the life of the deceased, which design and condition of the mind continued throughout the transaction, and for the purpose of affording a pretext for his wrongful and malicious action he encouraged by words or gestures the attack of the deceased upon his brother, or the attack upon the deceased by. his brother, designing and intending to incite the deceased to [200]*200slay or seriously harm, his brother or to attempt .the so doing, and then to kill him in such attempt or actual perpetration, and he did so kill the deceased under the circumstances mentioned, then he would likewise be guilty of murder in the first degree as found by the jury.
Or if the difficulty was originally brought on by John Guffee with express malice, and the defendant, on being apprised of the pendency of the difficulty, went to the scene with no purpose or intention to stay its progress or to protect his brother from harm, and upon his arrival there, and after his brother came up and renewed the difficulty, he knowingly joined with him in its further progress, and aided him by acts, or encouraged him by words or gestures, to pursue the further prosecution of his unlawful purpose, and the deceased was slain in the progress of the difficulty, then the defendant would be equally culpable with his brother, had the latter lived, and should be punished for murder in the first degree. If, however, John Guffee was not actuated by express malice, but in a transport of passion, engendered from whatever cause, sought the difficulty with the deceased, and in its progress conceived the purpose to slay him, and the defendant, in a state of like passion at seeing his brother engaged, united with him in purpose and action, without attempting to stay the difficulty, but by word or action encouraged John in its prosecution, and the deceased was slain, then John, had he lived, would have been guilty of murder in the second degree, and the defendant is guilty of no higher offence.
But if it appeared satisfactorily in evidence that there was no preconceived purpose on the part of the defendant to take the life of the deceased, but that, when apprised of the threatened danger to his brother, he yielded to an impulse derived from nature and common to humanity, and rushed to the rescue of his brother, with no purpose or intention to join with him in any unlawful attack upon the deceased, but solely to prevent harm from befalling bis brother, or to prevent the further progress of the difficulty [201]*201between his brother and the deceased, and his words and conduct at the scene of the difficulty were not intended or calculated to foment further strife, but were said and done with a view to discourage the continuance of the quarrel, and, without agency or participation on his part, the brother of the defendant renewed the difficulty with the deceased, which resulted in the death of his brother, and thereupon the defendant, in a spirit of revenge, conceived and executed immediately the purpose to kill the deceased, then, if the slaying of his brother was not an adequate cause to produce such passion, the defendant would not be guilty of murder in the first but in the second degree. Or if, after the defendant reached the scene of the difficulty, and after its renewal between the deceased and the defendant’s brother, the defendant having no part or lot in the wrongful act or purpose of his brother, he conceived the purpose hypothetically or conditionally, and not absolutely, to kill or seriously injure the deceased in case the latter, in the progress of such difficulty, should kill or seriously injure his brother, and such conception did not spring from a sedate and deliberate mind, but was conceived when his mind was enraged or excited by the concomitant circumstances and surroundings, and was incapable of cool reflection, and there was not sufficient cooling-time between the conception and execution of such purpose, on the happening of the contemplated contingency, then the homicide would be murder in the second degree only, and not of a higher grade.
Addressing ourselves to a further inquiry as to the issues in the case, we are led naturally to consider the elements of manslaughter, and the principles governing that offence as applicable to the facts of this case.
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Clark, J.
In the determination of the novel and somewhat intricate questions involved in this case, as they arise upon the record, we are aided but little by the adjudged cases, or the writings of learned jurists who have made the-department of criminal law their special study. So far as we have been able to ascertain by an investigation necessarily hurried- and unsatisfactory, no case occupying the-precise attitude of this has as yet come up for decision and the general principles of criminal law, as found in the-books, fail to supply us with rules for guidance, well-defined and established, and directly applicable to the issues arising upon the facts in proof. In determining the law of the case, therefore, we must deduce our conclusions from the-light of reason, unaided except it may be by certain established principles which may serve to fix the law of the case as applicable to certain portions of the transaction.
Upon the various issues legitimately arising from the evidence, it was competent for the jury to have found their verdict for murder in either degree, or for manslaughter, or justifiable homicide in self-defence ; and it was therefore incumbent upon the court to submit instructions applicable to-either of these deductions, and embodying with substantial accuracy the peculiar principles of law which should govern them in determining intelligently the particular offence of which the defendant was actually guilty under the law and beyond a reasonable doubt. Without attempting to set out with literal verbal accuracy these several issues, the law governing them may be briefly stated as follows : —
[199]*199If the defendant and John Guffee, anterior to the original difficulty between John Guffee and the deceased, conspired, together and agreed with each other to slay the deceased upon a favorable opportunity, and in pursuance of such common purpose and design, and after acts done indicating a preparation therefor and flight thereafter, John Guffee, by the procurement or consent of the defendant, brought on the original difficulty between himself and the deceased, for the purpose of affording a pretext for the one or the other to execute the common purpose, and by prearrangement the defendant came upon the scene, and, seizing upon the first favorable opportunity, executed his preconceived design and slew the deceased, then, if the jury believed this state of facts to exist beyond a reasonable doubt, their verdict was correct, and the defendant was properly convicted of murder in the first degree. Or if, after the termination of the first difficulty between John Guffee and the deceased, the defendant, being informed thereof and in a state of mind sufficiently calm, and self-possessed to consider of and contemplate the nature of the act about to be done, agreed with John Guffee to slay the deceased, or with mind sedate and deliberate formed the design to slay the deceased without any agreement with John Guffee, and in pursuance of such formed design and purpose proceeded to the scene of the difficulty, and upon a favorable opportunity carried his design and purpose into execution, in the absence of any fresh provocation upon the part of the deceased, then he was certainly guilty as found, if such facts existed beyond a reasonable doubt. And further, if the defendant, with a sedate and deliberate mind, came upon the scene of the difficulty with the formed design to take the life of the deceased, which design and condition of the mind continued throughout the transaction, and for the purpose of affording a pretext for his wrongful and malicious action he encouraged by words or gestures the attack of the deceased upon his brother, or the attack upon the deceased by. his brother, designing and intending to incite the deceased to [200]*200slay or seriously harm, his brother or to attempt .the so doing, and then to kill him in such attempt or actual perpetration, and he did so kill the deceased under the circumstances mentioned, then he would likewise be guilty of murder in the first degree as found by the jury.
Or if the difficulty was originally brought on by John Guffee with express malice, and the defendant, on being apprised of the pendency of the difficulty, went to the scene with no purpose or intention to stay its progress or to protect his brother from harm, and upon his arrival there, and after his brother came up and renewed the difficulty, he knowingly joined with him in its further progress, and aided him by acts, or encouraged him by words or gestures, to pursue the further prosecution of his unlawful purpose, and the deceased was slain in the progress of the difficulty, then the defendant would be equally culpable with his brother, had the latter lived, and should be punished for murder in the first degree. If, however, John Guffee was not actuated by express malice, but in a transport of passion, engendered from whatever cause, sought the difficulty with the deceased, and in its progress conceived the purpose to slay him, and the defendant, in a state of like passion at seeing his brother engaged, united with him in purpose and action, without attempting to stay the difficulty, but by word or action encouraged John in its prosecution, and the deceased was slain, then John, had he lived, would have been guilty of murder in the second degree, and the defendant is guilty of no higher offence.
But if it appeared satisfactorily in evidence that there was no preconceived purpose on the part of the defendant to take the life of the deceased, but that, when apprised of the threatened danger to his brother, he yielded to an impulse derived from nature and common to humanity, and rushed to the rescue of his brother, with no purpose or intention to join with him in any unlawful attack upon the deceased, but solely to prevent harm from befalling bis brother, or to prevent the further progress of the difficulty [201]*201between his brother and the deceased, and his words and conduct at the scene of the difficulty were not intended or calculated to foment further strife, but were said and done with a view to discourage the continuance of the quarrel, and, without agency or participation on his part, the brother of the defendant renewed the difficulty with the deceased, which resulted in the death of his brother, and thereupon the defendant, in a spirit of revenge, conceived and executed immediately the purpose to kill the deceased, then, if the slaying of his brother was not an adequate cause to produce such passion, the defendant would not be guilty of murder in the first but in the second degree. Or if, after the defendant reached the scene of the difficulty, and after its renewal between the deceased and the defendant’s brother, the defendant having no part or lot in the wrongful act or purpose of his brother, he conceived the purpose hypothetically or conditionally, and not absolutely, to kill or seriously injure the deceased in case the latter, in the progress of such difficulty, should kill or seriously injure his brother, and such conception did not spring from a sedate and deliberate mind, but was conceived when his mind was enraged or excited by the concomitant circumstances and surroundings, and was incapable of cool reflection, and there was not sufficient cooling-time between the conception and execution of such purpose, on the happening of the contemplated contingency, then the homicide would be murder in the second degree only, and not of a higher grade.
Addressing ourselves to a further inquiry as to the issues in the case, we are led naturally to consider the elements of manslaughter, and the principles governing that offence as applicable to the facts of this case. It is true our statute, in furnishing illustrations of causes deemed adequate in law to produce sudden passion sufficient to reduce a homicide to this grade, fails to prescribe that the slaying of one’s brother in his immediate presence is an adequate cause. But it has been long since determined that the statutory [202]*202ilhistratious are not restrictive and exclusive, but are merely inserted as instances or examples by which those charged with the administration of the laws may be governed. Certainly, to one at all familiar with the promptings of the human heart and the motives by which men are governed in their resentments and affections, it cannot be a matter of serious question that the death of a brother by the violence-of another, in the immediate presence of one, is better calculated to produce, in a person of ordinary temper, a greater degree of anger, rage, or resentment, than any of the causes particularly designated in the statute, and that, such an occurrence is amply sufficient to render the mind incapable of cool reflection. Down deep in the human heart there is an abiding love for our kith and kin, which intensifies as we approach a common parentage. A brother’s virtues are magnified and his faults overlooked, and upon summons we fly to his relief without pausing to contemplate the consequences to ourselves, or taking much time to consider whether, in the particular instance, he is in the right or the wrong. It suffices usually for us to know that he is in danger and needs our assistance, and we blindly follow that impulse born in us, and which impels us to rush to the rescue and save him from harm, and leaves us to contemplate our actions after the danger has passed and reason has resumed its sway. This infirmity (or virtue) in human nature cannot be ignored in the practical administration of justice, and is well established in the law as pertaining to the relations even of master and servant, not to mention the other more important civil relations. Hor. & Thomp. on Self-Defence, 750, and authorities cited. Of course the principle cannot be taken into consideration,, and can have no effect, when a brother, or parent, or master, etc., rushes to the aid of another engaged in the perpetration of an unlawful act, and knowingly joins in the execution of the original unlawful purpose ; for then he becomes a principal in law, and shares the culpability of the entire [203]*203transaction from its inception to its termination. A master, maliciously intending to kill another, takes his servants with him, and engages his adversary on meeting him. His servants, seeing their master engaged, rush to the "rescue and kill his antagonist. At common law this may be murder in the master, but only manslaughter in the servants. 1 Hawk. P. C., chap. 31, sect. 55.
The same principle applies to various other relations, including sometimes strangers (id., sect. 519) ; but, in law, hot blood is more naturally expected in a case of interference by a near relation or friend than in others more distantly removed. Id., sect. 446. If, therefore, the defendant in this case, not intending to unite with his brother in making an unlawful attack upon the deceased, and not knowing the unlawful purpose of his brother, but awaiting an anticipated necessity for his interference in order to protect his brother from serious bodily harm or death, threw up his gun and fired simultaneously with the discharge of the pistol by deceased at his brother, or, seeing the intention of the deceased to fire upon his brother and endeavoring to anticipate him, but failing, the deceased being too quick for him and discharging his pistol first, the defendant is not guilty of any higher grade of felonious homicide than manslaughter, notwithstanding the defendant’s brother may have brought on the conflict with malicious intent.
Or if the defendant, with no purpose of injuring the deceased, but desiring and attempting to stop the progress of the difficulty between his brother and the deceased, and with no purpose or intention to aid his brother in an unlawful and violent attack upon the deceased, saw his brother shot down in his presence, and in a fit of sudden passion, engendered by this adequate cause, he voluntarily slew the deceased upon the instant, then he is guilty of manslaughter and should not be punished for any higher offence.
With reference to the remaining phase of the evidence, it may be said that in more than one view which may be taken [204]*204of it the defendant was not debarred of the right of self-defence, and was entitled to a distinct presentation of the principles of law applicable thereto. If, without participation upon his part with the actual difficulty between his brother and the deceased, the latter, immediately after firing upon his brother and giving him the mortal wound of which he died, cocked his pistol and presented it at the defendant, apparently intending to kill or seriously injure him, and from such action on the part of the deceased the defendant then and there had a reasonable expectation or fear of immediate death or serious bodily injury at the hands of the deceased, he had a right to act upon such appearances and slay the deceased; and a killing under such circumstances was justifiable. So also if the deceased, after firing the first shot at defendant’s brother, immediately cocked his pistol and made other demonstrations indicating an apparent intention to again fire upon the brother, and the defendant honestly believed, without fault or negligence on his part, that the deceased was continuing his attack upon his brother, and, acting upon such belief, and with a purpose to prevent such further attack and to protect the life of his brother, he fired the shot which killed the deceased, he would be guilty of no higher offence than manslaughter.
Again: If, after the separation of John Guffee and the deceased, by the defendant and other parties in the drugstore, John Guffee abandoned all hostile purpose against the deceased, and dismissed from his mind all intention to renew the difficulty, and did no act or uttered no word from which the deceased could reasonably infer a further intention to prosecute the difficulty, and the deceased, without further provocation on John’s part, drew his pistol, and by acts, words, or gestures reasonably indicated an immediate intention on his own part to attack John Guffee and to slay him or do him serious bodily injury, then John Guffee had a right, if he so believed and the danger was imminent, to defend himself in any capable and efficacious manner, to the [205]*205extent of seizing the person of the deceased and stabbing him, if in no other way such unlawful attack could be successfully avoided or thwarted ; and if, at this juncture, and ■without previous cooperation on his part with the difficulty, the defendant, seeing the danger of his brother, fired the shot to protect his brother’s life, and such action on his part reasonably appeared to be essential to the safety of his brother, then he would be alike justifiable, even though the shot came too late to save his brother.
It is believed the charge of the court failed to distinctly set forth the law applicable to the various phases of fact as indicated above, and in some particulars is not free from other objections in failing to state with accuracy the principles of law which should govern the jury in passing upon the issues actually submitted. In discussing the doctrine of self-defence and the right to interfere in behalf of a brother and for his protection, the court instructed the jury as follows : “ But in such case it must appear that the party who thus acts acted on the defensive, or in the defence of his brother, and in such case it must further appear that neither the party killing nor his brother in whose behalf he acts was the aggressor, and provoked the difficulty with the apparent intention of taking advantage of any hostile movement of the other party. In such case the killing would be neither excusable nor justifiable. * * * When one person takes the life of another, in order to prevent the person killed from taking the life of such other person, such killing is neither excusable nor justifiable if it should appear that the person in whose behalf he interferes was in the wrong, and sought the difficulty with the apparent intention of bringing about a conflict that may result in death or serious bodily injury. When one person interferes in behalf of another, he becomes responsible for the acts of the person in whose behalf he interferes; and if the acts and circumstances would not justify the tilling by the person in whose behalf he interferes, neither will the law justify him in taking life in behalf of such person.”
[206]*206The inherent vice of this extract from the charge of the court is, that it bound appellant to his brother with hooks of steel, and made him answerable for the acts of his brother, as well as for his own, without regard to the motive or intent, which may have been totally dissimilar in the breast of each. Throughout the transaction John Guffee may have been actuated by a malicious motive, a heart regardless of social duty and fatally bent upon mischief, while the intent of appellant may have been of a wholly different nature and character. Can it be said that in that event the same degree of culpability must attach to him as if his purpose had been the same as that of his brother? If so, one of the fundamental principles of criminal jurisprudence must be ignored and set at naught. If my brother seeks out his enemy upon the public highway with a view to slay him, and I, ignorant of his design as well as the cause of the difficulty and how it originated, but seeing him hotly engaged and the fortune of the fight turning against him, and realizing that he is in imminent danger of life or limb, rush to his rescue, and strike down his antagonist in order to save Ms life, must I, under such circumstances, be adjudged guilty of murder with express malice, merely because my brother would be so adjudged in case he had inflicted the mortal blow ? If the law is so written in the books, we have failed to discover it. Nature has written her own law "differently in the hearts of men.
Of course, if one joins with another in the execution of an unlawful purpose, knowing that purpose, he is equally accountable for the result, no matter at what stage of the transaction Ms conjunction occurs, and no matter how near and dear the natural relation between them. But, as in all other instances, there must be a unison of purpose and intent to accomplish the original undertaking, and all others naturally incident thereto or "within the scope and purview thereof, before an equal culpability attaches. Many familiar illustrations of this principle are furnished in the books, to some of which we refer without elaboration. 2 Archb. Cr. [207]*207Pr. & Pl. (16th ed.) 250, 251; 1 Russ. on Cr. 590 et seq.; Rex v. Hawkins, 3 Car. & P. 392; Regina v. Caton, 12 Cox’s C. C. 624.
Russell, in discussing this principle, says : From this it follows a fortiori, that if a man-servant, or friend, or even a stranger, coming suddenly, and seeing him fighting with another man, side with him and kill the other man, or seeing his sword broken, send him another, wherewith he kills the other man, such servant, friend, or stranger will be only guilty of manslaughter. 1 Hawk. P. C., chap. 31, sect. 56; 1 East’s P. C. 290, chap. 5, sect. 58. But this proposes that the person interfering does not know that the fighting is upon malice ; for though if A. and B. fight upon malice, and C., the friend or servant of A., not being acquainted therewith, come in and take part against B., and kill him, this (though murder in A.) is only manslaughter in C., yet it would be otherwise if C. had known that the fighting was upon malice, for then it would be murder in both.” 1 Russ. on Cr. 590.
Thus we see that the governing principle in this, as in all crime, is the intent with which the act is done. Not the intent with which the party aided brought on the difficulty, or prosecuted it after its inception, but the intent with which the party acted who is on trial, and who came to the aid of the other; and by that intent must his guilt be estimated and his punishment be meted out, if his act be found culpable. According to his own act and intent does the law measure him, and hold him guilty of murder, or of manslaughter, or entirely justifiable, as the facts may warrant; and the intent of the party aided is immaterial, until the knowledge, or means of knowledge, of the defendant, and his purpose and intent in participating in the affray, are ascertained.
This error permeates the entire charge of the court relating to self-defence, and is carried into the application of the law to the particular case to such an extent as neces[208]*208sarily to have impressed itself upon the minds of the jury and caused them to give it undue weight and consideration in their deliberations ; and under its direction it was hardly possible for the jury to have found for a less grade than murder in the first degree.
In the progress of the charge, the jury were further instructed as follows: “You have seen from paragraph 7 of this charge that to take human life is always unlawful unless the same occurs under circumstances which excuse or justify the killing; and when an unlawful killing is clearly shown to have been done, it is for the defendant to show facts which mitigate or reduce the offence below murder. When this is not done, the law implies or imputes malice to such unlawful killing.” In the case of Harris v. The State, decided at the present term, this court had occasion to examine with some care the doctrine of implied malice, and sustained an instruction which told the jury, substantially, that when an unlawful killing is proved, and there are no circumstances in evidence which tend to show express malice or which tend to mitigate, excuse, or justify.the act, then the law implied malice, and the offence was murder in the second degree. But the instruction above quoted varies essentially from the principle recognized in that case, and is clearly erroneous in so far as it shifts the burden upon a defendant to establish mitigating facts and circumstances. It is never incumbent upon a defendant on trial in a criminal prosecution to show any facts in mitigation, unless such mitigation fails to appear in the evidence against him, and the facts established by the State show beyond a reasonable doubt a prima facie case of guilt. Leonard v. The State, 7 Texas Ct. App. 417. And the charge of the court practically instructs the jury that they cannot consider any mitigating facts and circumstances unless they appear in the defendant’s evidence; for it tells them that “ it is for the defendant to show facts which mitigate,” etc., and “when this is not done”—that is, the [209]*209defendant has not shown it—the law implies the malice. The general current of modern authorities condemn the principle as unsound and erroneous. Hall v. The State, Galveston Term, 1875; Perry v. The State, 44 Texas, 473; Brown v. The State, 4 Texas Ct. App. 275; Ake v. The State, 6 Texas Ct. App. 418; The State v. Swayze, 30 La. An. 1325; Maher v. The People, 10 Mich. 212; The People v. Moody, 45 Cal. 289; The State v. Porter, 34 Iowa, 131.
The other errors assigned are not tenable, and need no discussion. Because the charge of the court failed to set forth distinctly the law applicable to the case, the judgment is reversed and the cause remanded.
Reversed and remanded.