White, Presiding Judge.
The exact facts surrounding the alleged homicide in this case will be found in the statement by the Reporters. But we will summarize them briefly here, for the better understanding of the opinion.
First. Appellant, in 1880, received a wound in the head caused by a fall from a horse. He was confined to the house for some months. After this he suffered from a long attack of typhoid fever, which, at the time at least, affected the brain.
Second. Subsequent to the wound and • illness, his temperament seemed to undergo a change, and he became subject to fits of passion from inadequate cause; and the evidence tended to show that on more than one occasion he was actually insane.
Third. On the day of the homicide he appeared to be all right mentally and physically, through the morning and up to a short time before the homicide. At about two o’clock he went to a black smith’s shop in the town of Hutchings, and there met several acquaintances; among them two colored men, Heal and Frazier. • Some one at the shop had whisky, and the persons there, or some of them, had been drinking and continued to drink. Appellant was invited to join them, but he declined; on further persuasion he took, as some of the witnesses say, one drink of one swallow; other witnesses say they think he drank more, but none swore to seeing him drink more than once.
Fourth. Most of the parties at the black smith shop remained there for some length of time, at least an hour or two, and during that time the appellant was in apparent good humor, cheerful, and playful.
Fifth. After a length of time the two colored men, Heal and Frazier, got into a controversy in regard to whom gratitude of the negro was due because of their freedom. Appellant and one or more of the white men present, said it was due to the republican party. The two negroes who were at issue on the question [396]*396became angry, and Frazier struck at Neal with the spoke of an engine, the spoke being one and a half inches thick, three and a half inches wide, and two and a half feet long. The blow struck appellant on the side of the head (as two witnesses swore), and prostrated him to his knees. At the time he was struck he had a chisel or screw driver in his hand, and by some means was cut on the arm, and bled freely from it.
Sixth. When appellant arose from his knees he struck Frazier on the head with what ever it was he had in his hands, and Frazier passing out, appellant also struck the door with the instrument he held in his hand, and then passed out towards his horse. Frazier went out- at the door, saying he would get his pistol and bill appellant.
Seventh. Appellant about the same time left the shop and went toward where his horse was tied, gesticulating with his arms and hallooing, but what was said was not stated, if understood.
Eighth. At the time there was a game of base ball being played a short distance from where the appellant’s horse was tied, there being present the players and spectators, both white and colored.
Ninth. Appellant cut the cord with which his horse was tied, mounted him, reached down to the saddle pocket, secured his pistol, rode in a lope more or less about the play grounds, flourished his pistol, perhaps fired it off, at last came to the deceased, who was a spectator of the game, fired at him, shot him in the head, killing him instantly, saying as he shot: “That’s the damned rascal that cut me.” The deceased was an old black negro, and Frazier was a yellow man. The deceased had had nothing to do with the trouble which had occurred at the black smith shop.
Tenth. Appellant, after the shot, rode around firing off his pistol, drawing it on a white man, making him hold up his hands, and then rode to town and into a store house, still apparently wild with excitement, where he was unhorsed forcibly, it requiring two men to manage him, he manifesting exceptional and extraordinary strength. After he was unhorsed his wildness continued for a considerable period of time, but' afterwards, from prostration or other causes, he slept, at one time an hour, and at another time one and a half hours, which brought the hour to eleven o’clock at night, the shooting having occurred at five o’clock p. m.z when he wag carried to the jail.
[397]*397Eleventh. Persons acquainted with the appellant, who saw his actions just before, at the time of, and after the shooting, describe him as in their opinion insane. One physician, who saw his actions as above, and others who saw him after the shooting, all give it as their professional opinion that he was insane.
We have not undertaken to give all the testimony heard on the trial, for the reason that we do not deem it material to do so to reach our conclusions on the questions presented for our decision. There was evidence tending quite strongly to prove that appellant was drunk, and not insane, and there are some contradictions as to what occurred on the ground just prior to and after the shooting; but the view we take of the case renders it needless that we should discuss the sufficiency of the evidence to support the verdict, or whether the verdict is palpably against the preponderance of the evidence. There was no evidence showing that appellant knew the deceased. Our conclusions as to the law on the facts are as follows:
First. The court should have charged the law of manslaughter. The evidence plainly raised that question, and it should have been submitted to the jury. The fact that the deceased was not the man whose act provoked the sudden passion, if it existed, which could be weighed by the jury to reduce the homicide to manslaughter, is not an insuperable one to bar appellant from having that issue submitted by the court to the jury, for their consideration in determining the degree of crime and grade of punishment. The intent, at the time of the homicide, in the mind of the slayer, is the measure to be applied to ascertain the degree of crime.
We have formerly said, after very careful consideration: “If one committing an assault with intent to murder accidentally kill a third person, he is guilty of murder in the second degree (McConnell v. The State, 13 Texas Ct. App., 390), but if the act done is the unintentional homicide of a different person from the one intended, but without malice and while the mind is under the immediate influence of sudden passion, arising from an ade-' quate cause, such as anger, etc., rendering it incapable of cool reflection, the crime is manslaughter, because the one intended was manslaughter. The intent is the essence of the crime, and when the intent and act resulting from it are precisely the same, whether the fatal shot took effect upon the party at whom it was aimed, or some one else, the guilt, it would seem, would be the same.” (Clark v. The State, 19 Texas Ct. App., 502-3.)
[398]*398It will not be questioned that if the person killed had been the man Frazier, and not an innocent third party, a charge on manslaughter would not only have been applicable, but; under the law, an absolute requisite to a full, complete, and perfect charge, to respond to the facts in evidence. The matter of adequate cause, of cooling time, the killing in passion, and whether it flowed from the adequate cause are all facts for the jury, under the proper directions by the court as to the law of the case.
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White, Presiding Judge.
The exact facts surrounding the alleged homicide in this case will be found in the statement by the Reporters. But we will summarize them briefly here, for the better understanding of the opinion.
First. Appellant, in 1880, received a wound in the head caused by a fall from a horse. He was confined to the house for some months. After this he suffered from a long attack of typhoid fever, which, at the time at least, affected the brain.
Second. Subsequent to the wound and • illness, his temperament seemed to undergo a change, and he became subject to fits of passion from inadequate cause; and the evidence tended to show that on more than one occasion he was actually insane.
Third. On the day of the homicide he appeared to be all right mentally and physically, through the morning and up to a short time before the homicide. At about two o’clock he went to a black smith’s shop in the town of Hutchings, and there met several acquaintances; among them two colored men, Heal and Frazier. • Some one at the shop had whisky, and the persons there, or some of them, had been drinking and continued to drink. Appellant was invited to join them, but he declined; on further persuasion he took, as some of the witnesses say, one drink of one swallow; other witnesses say they think he drank more, but none swore to seeing him drink more than once.
Fourth. Most of the parties at the black smith shop remained there for some length of time, at least an hour or two, and during that time the appellant was in apparent good humor, cheerful, and playful.
Fifth. After a length of time the two colored men, Heal and Frazier, got into a controversy in regard to whom gratitude of the negro was due because of their freedom. Appellant and one or more of the white men present, said it was due to the republican party. The two negroes who were at issue on the question [396]*396became angry, and Frazier struck at Neal with the spoke of an engine, the spoke being one and a half inches thick, three and a half inches wide, and two and a half feet long. The blow struck appellant on the side of the head (as two witnesses swore), and prostrated him to his knees. At the time he was struck he had a chisel or screw driver in his hand, and by some means was cut on the arm, and bled freely from it.
Sixth. When appellant arose from his knees he struck Frazier on the head with what ever it was he had in his hands, and Frazier passing out, appellant also struck the door with the instrument he held in his hand, and then passed out towards his horse. Frazier went out- at the door, saying he would get his pistol and bill appellant.
Seventh. Appellant about the same time left the shop and went toward where his horse was tied, gesticulating with his arms and hallooing, but what was said was not stated, if understood.
Eighth. At the time there was a game of base ball being played a short distance from where the appellant’s horse was tied, there being present the players and spectators, both white and colored.
Ninth. Appellant cut the cord with which his horse was tied, mounted him, reached down to the saddle pocket, secured his pistol, rode in a lope more or less about the play grounds, flourished his pistol, perhaps fired it off, at last came to the deceased, who was a spectator of the game, fired at him, shot him in the head, killing him instantly, saying as he shot: “That’s the damned rascal that cut me.” The deceased was an old black negro, and Frazier was a yellow man. The deceased had had nothing to do with the trouble which had occurred at the black smith shop.
Tenth. Appellant, after the shot, rode around firing off his pistol, drawing it on a white man, making him hold up his hands, and then rode to town and into a store house, still apparently wild with excitement, where he was unhorsed forcibly, it requiring two men to manage him, he manifesting exceptional and extraordinary strength. After he was unhorsed his wildness continued for a considerable period of time, but' afterwards, from prostration or other causes, he slept, at one time an hour, and at another time one and a half hours, which brought the hour to eleven o’clock at night, the shooting having occurred at five o’clock p. m.z when he wag carried to the jail.
[397]*397Eleventh. Persons acquainted with the appellant, who saw his actions just before, at the time of, and after the shooting, describe him as in their opinion insane. One physician, who saw his actions as above, and others who saw him after the shooting, all give it as their professional opinion that he was insane.
We have not undertaken to give all the testimony heard on the trial, for the reason that we do not deem it material to do so to reach our conclusions on the questions presented for our decision. There was evidence tending quite strongly to prove that appellant was drunk, and not insane, and there are some contradictions as to what occurred on the ground just prior to and after the shooting; but the view we take of the case renders it needless that we should discuss the sufficiency of the evidence to support the verdict, or whether the verdict is palpably against the preponderance of the evidence. There was no evidence showing that appellant knew the deceased. Our conclusions as to the law on the facts are as follows:
First. The court should have charged the law of manslaughter. The evidence plainly raised that question, and it should have been submitted to the jury. The fact that the deceased was not the man whose act provoked the sudden passion, if it existed, which could be weighed by the jury to reduce the homicide to manslaughter, is not an insuperable one to bar appellant from having that issue submitted by the court to the jury, for their consideration in determining the degree of crime and grade of punishment. The intent, at the time of the homicide, in the mind of the slayer, is the measure to be applied to ascertain the degree of crime.
We have formerly said, after very careful consideration: “If one committing an assault with intent to murder accidentally kill a third person, he is guilty of murder in the second degree (McConnell v. The State, 13 Texas Ct. App., 390), but if the act done is the unintentional homicide of a different person from the one intended, but without malice and while the mind is under the immediate influence of sudden passion, arising from an ade-' quate cause, such as anger, etc., rendering it incapable of cool reflection, the crime is manslaughter, because the one intended was manslaughter. The intent is the essence of the crime, and when the intent and act resulting from it are precisely the same, whether the fatal shot took effect upon the party at whom it was aimed, or some one else, the guilt, it would seem, would be the same.” (Clark v. The State, 19 Texas Ct. App., 502-3.)
[398]*398It will not be questioned that if the person killed had been the man Frazier, and not an innocent third party, a charge on manslaughter would not only have been applicable, but; under the law, an absolute requisite to a full, complete, and perfect charge, to respond to the facts in evidence. The matter of adequate cause, of cooling time, the killing in passion, and whether it flowed from the adequate cause are all facts for the jury, under the proper directions by the court as to the law of the case.
There was evidence tending to prove a blow on the head, a wound that drew blood, and blood enough drawn to make the person of the party bloody; also that there was excitement and passion, and that the killing followed in the track.of the blow, the blood and the passion, within a brief period, and may have been attributed to the passion, but the person killed was not the person who aroused the passion, but another person who had no connection with the trouble. How does that change the question?
We have heretofore seen that intent is the essence of crime, and if appellant killed the deceased believing him to be Frazier, then he would be guilty of the identical crime of which he would have been guilty had he killed Frazier, unless the killing of Frazier would have been murder in the first degree, and then this killing would have been murder in the second degree. There would, indeed, have been other and many collateral but pertinent questions for the jury to consider, and among them, whether appellant was recklessly disregardful of human life; whether there was really a mistake as to the identity of persons, time for cooling, and whether passion existed; but these were all subordinate to the main question, viz: Was the killing done in sudden passion arising from an adequate cause? And the consideration of any and all of these main and collateral questions, by the jury, depended on the charge of the court. The law of manslaughter should have been given in charge by the court, whether requested by appellant or not. The facts themselves called for the charge.
Second. Insanity of the appellant at the time of the homicide was also relied on in defense. While the charge was very full on nearly all the points, yet, on another trial, we think an additional view of the law should be presented. The court failed to state to the jury what was the law of the case in the event they believed from the evidence that the blow and the drink combined caused the alleged state of insanity, but in such view [399]*399connected the blow and the liquor with a predisposing cause to insanity, notwithstanding one of the witnesses (Doctor Potter) testified that a “ person in a normal condition of mind might take a drink or stimulant that would riot affect the mind, and if struck on the head the mind might be instantly affected; a blow on the head without any stimulant whatever might produce insanity, but with a stimulant, a man would much more likely become insane from the blow.
Opinion delivered May 25, 1886.
The point made by appellant in the first charge asked was substantially correct, and should have been given. The correct doctrine applicable to the facts is believed to be as stated in Brown’s Medical Jurisprudence (2 ed.), p. 370. There are other points made by appellant, but, as they will not probably arise on another trial, they will not be further noticed.
Because of the error in failing to charge the law of manslaughter, and refusing the charge as requested by appellant, the case is reversed, and cause remanded for a new trial.
Reversed and remanded.