Clark, J.
Under well-recognized and established rules, the application of defendant for a third continuance was manifestly insufficient in more than one essential particular. A continuance had already been had because of the absence of the three witnesses, after which no legal diligence was shown on the part of defendant to secure their attendance [107]*107upon trial. Two of the witnesses are shown in the application to be beyond the jurisdiction and process of the court, and the whereabouts of the other is left wholly to conjecture. There should be an end of litigation, in criminal as well as in civil matters, and trials cannot be postponed repeatedly upon vague hypotheses that perhaps at some indefinite time in the future a fugitive witness may be possibly secured, or his exact whereabouts become known so that his testimony may be utilized by deposition. The court could not well have done otherwise than overrule the application, and we perceive no error in its action.
The charge of the court is reviewed and criticised by learned counsel for appellant in a most ingenious and elaborate argument, but, when considered as an entirety, we cannot say that it failed to present in a substantial manner all the law applicable to the case, or that the jury could have been misled by the terms employed. That malice arises by implication of law from the isolated fact of unlawful killing, so as to endow an act of homicide with the attributes of murder in the second degree, has, of late years especially, been seriously combated by the profession and commentators as an excrescence upon the law which should be eliminated ; and courts of certain States whose statutes are not altogether similar to ours have assumed, in a measure, this advanced position, and now hold the contrary to what has generally been regarded as the common law, and is certainly the law with us in Texas. It is to be observed, however, that in most of these cases the direct question has not been presented free from other complications, and its decision has usually been involved with some question relating to the burden of proof in criminal cases upon a plea of not guilty.
Were the question an open one, and entirely free from statutory qualifications, which is not the case, this court would even then feel some hesitancy in making so radical a departure from established authorities at common law, and would feel inclined to follow without much question the [108]*108beaten track made by the sages who have illustrated that system of jurisprudence. When examined critically, it occurs to us that there is little practical distinction between the law as contended for and the law as it is. If malice, in all cases, must be an inference of fact to be deduced by the jury, and not in any case an implication of law to be expounded by the court, the inquiry at once arises, from what fact must this inference be deduced? Every inference legitimately arising must have a substratum of fact as a basis, and in the absence of such basis the law permits no inference. Clearly, then, the jury must infer malice from the isolated fact of killing, because we are discussing by way of illustration a case in which nothing else is proven. They cannot draw this inference merely because it fairly and naturally arises from the evidence, because other inferences may likely arise as fairly and as naturally as this. For example, yielding to that most potent presumption of innocence which confronts the prosecution throughout the trial, would it not be a more natural conclusion that the homicide was perpetrated in self-defence, which is justified by all law, — human, natural, or revealed, — rather than that it was induced by a depraved heart, wholly regardless of social duty and fatally bent on mischief? Plainly, this must be so unless the doctrine of natural depravity must obtain in the administration of the law, which happily is not the case. The jury can only indulge this presumption of malice because the law tells them that from the isolated fact of killing, this state of the mind is arbitrarily inferable ; which is but an indistinct remove from the principle that from this fact the law implies the malice.
When, in connection with this almost imperceptible shade of distinction, it is remembered that from our earliest decisions down to the last reported, whenever courts of last resort in this State have had occasion to discuss the degrees of murder and the constituent essentials of each, it has been uniformly held, so far as our investigations have extended, [109]*109that when the fact of unlawful killing is established, and there are no circumstances in evidence which may tend to establish the existence of express malice, nor which may tend to mitigate, excuse, or justify the act, then the law implies malice, and the offence is murder in the second degree, we cannot hesitate in adhering to the principle, and in avoiding an innovation the exact result of which cannot well be foreseen.
It is useless to inquire by what process of reasoning or from what peculiarity of early law this principle has been derived. Suffice it to say, it is a principle as well established in our system as adjudication can make it; is sanctified by age and repeated decision, and not to be eliminated without grave consideration and by the exercise of the highest powers of government. In almost every case, and especially in the case at bar, it is, as has been said, a harmless abstraction, and “ seldom of practical utility in ascertaining the species of malice” (McCoy v. The State, 25 Texas, 43) ; and if it must be eliminated from the. body of our laws, that duty would more properly devolve upon other departments of government. ■
The definition of ‘ malice” as given in charge by the court is complained of as not accurate, and as calculated to mislead the minds of the jury, and to confuse them in their application of the law to the facts. A perfectly exact and satisfactory definition of that term, signifying its legal acceptation in a form at once clear and concise, has been often attempted, but with no very satisfactory permanent result. The differing minds of different courts have employed different terms and language in an attempt to convey substantially the same meaning; and while a general similarity is apparent in all the definitions, the legal mind has not yet crystallized the substance of the term into a terse sentence readily compreheudible by the average juror. About as clear, comprehensive, and correct definition as the authorities afford is, that “ malice is a condition of the mind [110]*110which 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 definition contained in the charge, though not “exact to a critical nicety, is deemed substantially sufficient to have enabled the jury to distinguish the legal meaning of the term, in contradistinction to its ordinary import. Its error, if error there be, militated against the prosecution and in favor of the defendant, in that it restricted the former to showing that the act was prompted by hatred, ill-will, or hostility toward the party slain, when the term possesses a much more comprehensive meaning. It is hardly legitimate to construe the latter portion of the definition as a distinct and independent enunciation, but it must be construed with what precedes it, and the whole, taken together, must be considered as an explanation by the court of the meaning of the term, amplified more by way of illustration than was perhaps necessary.
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Clark, J.
Under well-recognized and established rules, the application of defendant for a third continuance was manifestly insufficient in more than one essential particular. A continuance had already been had because of the absence of the three witnesses, after which no legal diligence was shown on the part of defendant to secure their attendance [107]*107upon trial. Two of the witnesses are shown in the application to be beyond the jurisdiction and process of the court, and the whereabouts of the other is left wholly to conjecture. There should be an end of litigation, in criminal as well as in civil matters, and trials cannot be postponed repeatedly upon vague hypotheses that perhaps at some indefinite time in the future a fugitive witness may be possibly secured, or his exact whereabouts become known so that his testimony may be utilized by deposition. The court could not well have done otherwise than overrule the application, and we perceive no error in its action.
The charge of the court is reviewed and criticised by learned counsel for appellant in a most ingenious and elaborate argument, but, when considered as an entirety, we cannot say that it failed to present in a substantial manner all the law applicable to the case, or that the jury could have been misled by the terms employed. That malice arises by implication of law from the isolated fact of unlawful killing, so as to endow an act of homicide with the attributes of murder in the second degree, has, of late years especially, been seriously combated by the profession and commentators as an excrescence upon the law which should be eliminated ; and courts of certain States whose statutes are not altogether similar to ours have assumed, in a measure, this advanced position, and now hold the contrary to what has generally been regarded as the common law, and is certainly the law with us in Texas. It is to be observed, however, that in most of these cases the direct question has not been presented free from other complications, and its decision has usually been involved with some question relating to the burden of proof in criminal cases upon a plea of not guilty.
Were the question an open one, and entirely free from statutory qualifications, which is not the case, this court would even then feel some hesitancy in making so radical a departure from established authorities at common law, and would feel inclined to follow without much question the [108]*108beaten track made by the sages who have illustrated that system of jurisprudence. When examined critically, it occurs to us that there is little practical distinction between the law as contended for and the law as it is. If malice, in all cases, must be an inference of fact to be deduced by the jury, and not in any case an implication of law to be expounded by the court, the inquiry at once arises, from what fact must this inference be deduced? Every inference legitimately arising must have a substratum of fact as a basis, and in the absence of such basis the law permits no inference. Clearly, then, the jury must infer malice from the isolated fact of killing, because we are discussing by way of illustration a case in which nothing else is proven. They cannot draw this inference merely because it fairly and naturally arises from the evidence, because other inferences may likely arise as fairly and as naturally as this. For example, yielding to that most potent presumption of innocence which confronts the prosecution throughout the trial, would it not be a more natural conclusion that the homicide was perpetrated in self-defence, which is justified by all law, — human, natural, or revealed, — rather than that it was induced by a depraved heart, wholly regardless of social duty and fatally bent on mischief? Plainly, this must be so unless the doctrine of natural depravity must obtain in the administration of the law, which happily is not the case. The jury can only indulge this presumption of malice because the law tells them that from the isolated fact of killing, this state of the mind is arbitrarily inferable ; which is but an indistinct remove from the principle that from this fact the law implies the malice.
When, in connection with this almost imperceptible shade of distinction, it is remembered that from our earliest decisions down to the last reported, whenever courts of last resort in this State have had occasion to discuss the degrees of murder and the constituent essentials of each, it has been uniformly held, so far as our investigations have extended, [109]*109that when the fact of unlawful killing is established, and there are no circumstances in evidence which may tend to establish the existence of express malice, nor which may tend to mitigate, excuse, or justify the act, then the law implies malice, and the offence is murder in the second degree, we cannot hesitate in adhering to the principle, and in avoiding an innovation the exact result of which cannot well be foreseen.
It is useless to inquire by what process of reasoning or from what peculiarity of early law this principle has been derived. Suffice it to say, it is a principle as well established in our system as adjudication can make it; is sanctified by age and repeated decision, and not to be eliminated without grave consideration and by the exercise of the highest powers of government. In almost every case, and especially in the case at bar, it is, as has been said, a harmless abstraction, and “ seldom of practical utility in ascertaining the species of malice” (McCoy v. The State, 25 Texas, 43) ; and if it must be eliminated from the. body of our laws, that duty would more properly devolve upon other departments of government. ■
The definition of ‘ malice” as given in charge by the court is complained of as not accurate, and as calculated to mislead the minds of the jury, and to confuse them in their application of the law to the facts. A perfectly exact and satisfactory definition of that term, signifying its legal acceptation in a form at once clear and concise, has been often attempted, but with no very satisfactory permanent result. The differing minds of different courts have employed different terms and language in an attempt to convey substantially the same meaning; and while a general similarity is apparent in all the definitions, the legal mind has not yet crystallized the substance of the term into a terse sentence readily compreheudible by the average juror. About as clear, comprehensive, and correct definition as the authorities afford is, that “ malice is a condition of the mind [110]*110which 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 definition contained in the charge, though not “exact to a critical nicety, is deemed substantially sufficient to have enabled the jury to distinguish the legal meaning of the term, in contradistinction to its ordinary import. Its error, if error there be, militated against the prosecution and in favor of the defendant, in that it restricted the former to showing that the act was prompted by hatred, ill-will, or hostility toward the party slain, when the term possesses a much more comprehensive meaning. It is hardly legitimate to construe the latter portion of the definition as a distinct and independent enunciation, but it must be construed with what precedes it, and the whole, taken together, must be considered as an explanation by the court of the meaning of the term, amplified more by way of illustration than was perhaps necessary.
Similar remarks may be applied to that portion of the charge defining manslaughter. The statutes are almost literally copied, and the interpolations and emphasis complained of could not have affected the finding. Critical nicety of expression is never absolutely essential in a charge, and substantial accuracy has ever been deemed sufficient to satisfy the demands of the law. Plainly, to our minds, the jury could not have been misled by this portion of the charge, nor could they have mistaken the meaning of the court, which fully assimilated to the meaning of the law as applicable to this particular case.
The quotation from the charge relating to the abstract right of self-defence, found in the brief of counsel and urged as erroneous, when taken and considered with a subsequent omitted portion of the same paragraph, is found .to be a full exposition of that branch of the law. The jury are instructed that “ a man may defend himself by taking the life of his assailant, if necessary to preserve his own [111]*111life, and is justified in so doing; and he may defend himself, if he is attacked, against serious bodily injury, and when attacked he is not bound to retreat, but may stand and defend himself. The attack upon the person of an individual, in order to justify a homicide, must be such as produces a reasonable expectation or fear of death or some serious bodily injury. A simple assault and battery will not justify a homicide. If the jury find that the defendant killed Olenick in self-defence, under the rule of self-defence as above laid down, the verdict will be not guilty.”
Examined in every possible light, we do not understand how this instruction could be tortured into a prohibition against the jury finding a verdict of acquittal only in case the defendant took life in order to preserve his own life, or how it precluded the person assaulted from taking life in order to prevent serious bodily injury to himself. The direction is about as plain as language can make it, that a person may defend himself to the extent of taking life in either contingency, — either to protect himself from being slain or from suffering serious bodily injury at the hands of the party attacking. And when to this is superadded a further instruction, that, “ if from the evidence you [the jury] find that the acts and conduct of Olenick, just before the killing, were such as would reasonably produce the belief, and did produce in the mind of the defendant the belief, that Olenick was about to take his life, or inflict on him some serious bodily injury, and you do not find that the altercation was brought on by the defendant for the purpose of affording an opportunity to kill Olenick, and that but for those acts, and the conduct of Olenick at the time of the killing, defendant would not have killed him, then you will find for the defendant,” it may be said with safety that, in view of the facts in evidence, the appellant has certainly had the full benefit of every humane principle which a merciful law throws around a prisoner on trial, covering him as with a mantle of protection, and he cannot [112]*112complain that all the advanced'positions in the law of self-defence were not accorded him.
The court did not err in refusing the instruction asked as to the presumption of law when a fresh .provocation intervenes between a preconceived malice against the person killed and the death. We have' searched the record in vain to find any evidence whatsoever of fresh provocation, and, if we must indulge any presumption at all, would rather incline to a presumption, in view of the whole evidence, that the fresh provocation, if any in fact existed, came from the defendant.
The verdict is sufficient (Moore v. The State, 7 Texas Ct. App. 14); and the alleged newly discovered evidence could not have affected the result, or be material on another trial. The appellant has had more than reasonable time in which to make full preparation for his defence, and has been convicted after a fair trial under the forms of law. The record abundantly attests the zeal and ability with which he has been defended, as well as the leniency of his countrymen who sat in judgment upon him; and we fail to perceive that the ends of justice have not been substantially and legally reached in his case.
The judgment is therefore affirmed.
Affirmed.