White, Presiding Judge.
Motions were made by defendant both to quash and in arrest of judgment for supposed fatal defects in the indictment. There is no question but that the indictment is inartistic and in some unnecessary averments rather confusing.
With regard to pleading in a criminal case, it is well settled that if, eliminating surplusage, an indictment so avers the constituents of the offense as to apprise the defendant of the charge against him and enable him to plead the judgment in bar of another prosecution, it is good in substance under our code. (Coleman v. The State, 2 Texas Ct. App., 512; Burke v. The State, 5 Texas Ct. App., 74; Mayo v. The State, 7 Texas Ct. App., 342; Holden v. The State, 18 Texas Ct. App., 91; Moore v. The State, 20 Texas Ct. App., 275.)
Now, eliminating as far as we can all mere verbiage, confused matter and surplusage from the indictment in this case, it reads as follows (omitting formal portions): That the accused, “late of said county, on, to wit, the fifteenth (15th) day of November, A. D. one thousand eight hundred and eighty-two, in said county of Parker, State of Texas, * * * and of his malice aforethought, contriving and intending one Viola Hunt McConnell to deprive of her life, did then and there with force and arms make an assault upon the body of the said Viola Hunt McConnell; and a certain pistol, the same being a deadly weapon, which he, the said Eli McConnell, in his hands then and there had and held, which said pistol as aforesaid was charged with gunpowder and leaden bullets, he, the said Eli McConnell, did then and there discharge and shoot off to, at and against her, the said Viola Hunt McConnell; ****** and so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Eli McConnell, in manner and form aforesaid, feloniously, will-. fully and of his express malice aforethought, did kill and murder the said Viola Hunt McConnell, contrary to law and against the peace and dignity of the State.”
In our opinion it is evident that the indictment, thus elimi[369]*369nated, sufficiently, fully and explicitly charges murder of the first degree. (See Willson’s Crim. Forms, Form 388, p. 173.) The motions to quash and in arrest were properly overruled.
Bills of exception 1 and 2 were taken to the action of the court in permitting the prosecution, over objections of defendant, “to prove by four witnesses the same harrowing facts attending the exhuming of the deceased child’s body, and to permit the county attorney in his closing address to the jury to abuse the defendant for making his defense,” As to the first bill: The evidence shows that the child was killed one evening; it was privately and hastily buried the next day. Some time afterwards it was disinterred with a view of ascertaining what, if any, wounds appeared upon the body. Two of the witnesses who were present on that occasion had testified to what they had seen, and the other two, one of whom was Doctor Legrand, the only medical witness who testified, were also permitted to give evidence as to the condition of the body and the nature and character of the wounds found upon it. We can perceive no error in this. It was clearly correct to have the testimony before the jury of the only physician who could testify as a medical expert, if necessary.
In his closing address the county attorney said: “The defendant in this case has stooped so low as to drag before you on the trial of this cause the infidelity of his dead wife, and publish her before the court house as a prostitute.” We can not deny that this remark was “unfair.” A defendant has a right unquestionably to introduce all such matters of defense as are admissible and calculated to mitigate, excuse or justify his actions, and whilst the prosecuting officer has the right to comment upon the nature and character of such defenses, still in doing so it is most improper to denounce and vilify him on account of his defenses, which often times accused parties are compelled from stress of circumstances unwillingly to interpose, or forced to avail of as drowning men will catch at straws. Counsel representing the State have been admonished time and again of the injustice and wrong of such practices and the danger they incur in such course of imperilling convictions which would otherwise be irreversible. (See Posey’s Crim. Dig., “Privilege of Counsel.”) To make vituperation and abuse, however, grounds for reversing a judgment, it must appear that the remarks indulged in were grossly unwarranted and improper; that they were of a material character and calculated injuriously to affect the defendant’s [370]*370rights. (Pierson v. The State, 18 Texas Ct. App., 524.) Whilst the remark here complained of was reprehensible and unjustifiable, we do not think it should be held so grossly so as to constitute, per se, sufficient cause for reversal of the judgment.
No evidence having been adduced tending to establish insanity it was not error for the court to decline or fail to instruct the jury on that branch of the law. That defendant’s mind was greatly excited by a knowledge in the first instance of his wife’s infidelity, and that such natural excitement was inflamed, if possible, by the free use of intoxicants, is, perhaps, abundantly shown; but there is not the slightest evidence of legal insanity, or that degree of mental aberration showing a want of knowledge of right or wrong, and sufficient to drive him with uncontrollable impulse to homicidal deeds. His conduct towards his wife may readily be accounted for as the result of anger, rage and resentment, those natural emotions common to all men of ordinary temper, which in no manner are indicative of a state of mind irresponsible for its actions. (Leache v. The State, ante, 279.)
The jury were fully and properly instructed as to the law of drunkenness and its effect upon crime. They were further fully instructed in the law relating to homicide of one party when the intention was to kill another, and of homicide in the performance of an unlawful act. (Ferrell v. The State, 43 Texas, 503; McConnell v. The State, 13 Texas Ct. App., 390; Clark v. The State, 19 Texas Ct. App., 495; Musick v. The State, 21 Texas Ct. App., 69.) The law of murder of the second degree, manslaughter and negligent homicide of the second degree, were directly applied, and ably, to the facts in the case.
But, though appellant has been convicted of manslaughter, great stress is laid upon a supposed radical defect of omission in the charge with reference to that branch of the case, and the persistency with which the objection is urged induces us to discuss it. As stated in the able brief of counsel, it is that the charge entirely fails to submit or willfully ignores “the theory of an accidental (?) killing under such passion as would make the crime manslaughter. The word “accidental” is probably inadvertantly used instead of “unintentional.” It is an established rule that “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 adequate cause, such as anger, rage, [371]*371sudden resentment, etc., rendering the mind incapable of cool reflection, the crime is manslaughter, because the one intended would be manslaughter.” (Clark v. The State, 19 Texas Ct. App., 495.)
We do not think the rule is applicable or properly invoked in this case.
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White, Presiding Judge.
Motions were made by defendant both to quash and in arrest of judgment for supposed fatal defects in the indictment. There is no question but that the indictment is inartistic and in some unnecessary averments rather confusing.
With regard to pleading in a criminal case, it is well settled that if, eliminating surplusage, an indictment so avers the constituents of the offense as to apprise the defendant of the charge against him and enable him to plead the judgment in bar of another prosecution, it is good in substance under our code. (Coleman v. The State, 2 Texas Ct. App., 512; Burke v. The State, 5 Texas Ct. App., 74; Mayo v. The State, 7 Texas Ct. App., 342; Holden v. The State, 18 Texas Ct. App., 91; Moore v. The State, 20 Texas Ct. App., 275.)
Now, eliminating as far as we can all mere verbiage, confused matter and surplusage from the indictment in this case, it reads as follows (omitting formal portions): That the accused, “late of said county, on, to wit, the fifteenth (15th) day of November, A. D. one thousand eight hundred and eighty-two, in said county of Parker, State of Texas, * * * and of his malice aforethought, contriving and intending one Viola Hunt McConnell to deprive of her life, did then and there with force and arms make an assault upon the body of the said Viola Hunt McConnell; and a certain pistol, the same being a deadly weapon, which he, the said Eli McConnell, in his hands then and there had and held, which said pistol as aforesaid was charged with gunpowder and leaden bullets, he, the said Eli McConnell, did then and there discharge and shoot off to, at and against her, the said Viola Hunt McConnell; ****** and so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Eli McConnell, in manner and form aforesaid, feloniously, will-. fully and of his express malice aforethought, did kill and murder the said Viola Hunt McConnell, contrary to law and against the peace and dignity of the State.”
In our opinion it is evident that the indictment, thus elimi[369]*369nated, sufficiently, fully and explicitly charges murder of the first degree. (See Willson’s Crim. Forms, Form 388, p. 173.) The motions to quash and in arrest were properly overruled.
Bills of exception 1 and 2 were taken to the action of the court in permitting the prosecution, over objections of defendant, “to prove by four witnesses the same harrowing facts attending the exhuming of the deceased child’s body, and to permit the county attorney in his closing address to the jury to abuse the defendant for making his defense,” As to the first bill: The evidence shows that the child was killed one evening; it was privately and hastily buried the next day. Some time afterwards it was disinterred with a view of ascertaining what, if any, wounds appeared upon the body. Two of the witnesses who were present on that occasion had testified to what they had seen, and the other two, one of whom was Doctor Legrand, the only medical witness who testified, were also permitted to give evidence as to the condition of the body and the nature and character of the wounds found upon it. We can perceive no error in this. It was clearly correct to have the testimony before the jury of the only physician who could testify as a medical expert, if necessary.
In his closing address the county attorney said: “The defendant in this case has stooped so low as to drag before you on the trial of this cause the infidelity of his dead wife, and publish her before the court house as a prostitute.” We can not deny that this remark was “unfair.” A defendant has a right unquestionably to introduce all such matters of defense as are admissible and calculated to mitigate, excuse or justify his actions, and whilst the prosecuting officer has the right to comment upon the nature and character of such defenses, still in doing so it is most improper to denounce and vilify him on account of his defenses, which often times accused parties are compelled from stress of circumstances unwillingly to interpose, or forced to avail of as drowning men will catch at straws. Counsel representing the State have been admonished time and again of the injustice and wrong of such practices and the danger they incur in such course of imperilling convictions which would otherwise be irreversible. (See Posey’s Crim. Dig., “Privilege of Counsel.”) To make vituperation and abuse, however, grounds for reversing a judgment, it must appear that the remarks indulged in were grossly unwarranted and improper; that they were of a material character and calculated injuriously to affect the defendant’s [370]*370rights. (Pierson v. The State, 18 Texas Ct. App., 524.) Whilst the remark here complained of was reprehensible and unjustifiable, we do not think it should be held so grossly so as to constitute, per se, sufficient cause for reversal of the judgment.
No evidence having been adduced tending to establish insanity it was not error for the court to decline or fail to instruct the jury on that branch of the law. That defendant’s mind was greatly excited by a knowledge in the first instance of his wife’s infidelity, and that such natural excitement was inflamed, if possible, by the free use of intoxicants, is, perhaps, abundantly shown; but there is not the slightest evidence of legal insanity, or that degree of mental aberration showing a want of knowledge of right or wrong, and sufficient to drive him with uncontrollable impulse to homicidal deeds. His conduct towards his wife may readily be accounted for as the result of anger, rage and resentment, those natural emotions common to all men of ordinary temper, which in no manner are indicative of a state of mind irresponsible for its actions. (Leache v. The State, ante, 279.)
The jury were fully and properly instructed as to the law of drunkenness and its effect upon crime. They were further fully instructed in the law relating to homicide of one party when the intention was to kill another, and of homicide in the performance of an unlawful act. (Ferrell v. The State, 43 Texas, 503; McConnell v. The State, 13 Texas Ct. App., 390; Clark v. The State, 19 Texas Ct. App., 495; Musick v. The State, 21 Texas Ct. App., 69.) The law of murder of the second degree, manslaughter and negligent homicide of the second degree, were directly applied, and ably, to the facts in the case.
But, though appellant has been convicted of manslaughter, great stress is laid upon a supposed radical defect of omission in the charge with reference to that branch of the case, and the persistency with which the objection is urged induces us to discuss it. As stated in the able brief of counsel, it is that the charge entirely fails to submit or willfully ignores “the theory of an accidental (?) killing under such passion as would make the crime manslaughter. The word “accidental” is probably inadvertantly used instead of “unintentional.” It is an established rule that “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 adequate cause, such as anger, rage, [371]*371sudden resentment, etc., rendering the mind incapable of cool reflection, the crime is manslaughter, because the one intended would be manslaughter.” (Clark v. The State, 19 Texas Ct. App., 495.)
We do not think the rule is applicable or properly invoked in this case. Defendant’s anger or rage at his wife could scarcely be termed “sudden,” since at least it is shown to have been in an active, uninterrupted state of existence from the time they left Weatherford for Staggs’s, a distance of over eight miles, if, in fact, it does not show the existence of such condition for several days prior to that time. Suppose, however*, that this passion had subsided and become cool, and that it was again suddenly aroused when, having gotten out of the buggy to pick up his wife’s hat, defendant finds she is whipping up the horses, is rapidly driving off, leaving him, and, unable to control his passion, he fires at her and kills the child. We take it that this is the only possible view of the evidence to which the rule invoked is applicable. Do the facts support that view? On the contrary, defendant himself told Staggs that he did not shoot at his wife at that time, but “at the horses, and tried to cut one of them down.” If such was his purpose, and the child was killed in pursuit of such purpose, the crime was negligent homicide of the second pegree. (Penal Code, Arts. 588, 589, 591, 592.)
But, no matter what his purpose may then have been, his shooting at that time did not kill the child. After this shooting the parties were at Staggs’s house, and the child was then well and drank milk, as Mrs. Staggs testifies. ISTo portion of the evidence, besides the declarations of defendant and his wife, definitely fix either the time, place, manner or circumstances under which the child was shot. That it was killed from being shot is made plainly to appear. Our reading of the facts furnishes us with no evidence requiring the instruction claimed as radical error of omission as to the law of manslaughter. If, however, such omission had been error, how does it appear appellant was injured thereby when his conviction was for manslaughter?
But the court did fail to charge upon the law of negligent homicide of the first degree. “If any person in the performance of a lawful act shall, by negligence or carelessness, cause the death of another, he is guilty of negligent homicide of the first degree.” (Penal Code, Art. 579.) To constitute this crime the act in which the party committing it is engaged must be lawful, yet it must be one coupled with an apparent danger of [372]*372causing death, and at the same time there must be no apparent intention to kill, and the homicide must be the consequence of the act done. (Penal Code, Arts. 580, 581, 584, 585.)
Opinion delivered November 17, 1886.
Now, both defendant and his wife, when they arrived at his father’s house, stated that the child was killed by the upsetting of the buggy. Whether true or untrue, that was the evidence as to their statement. It was part of the evidence in the case; it was defendant’s theory of the death. Now what ever may be thought of this theory in view of the fact that the body had a bullet hole through its brains, it was one phase of the defense and appellant had the right to have the jury plainly, affirmatively and pertinently instructed upon the law applicable to it as part of the case. It was not for the caurt to ignore it; it was matter for the jury to pass upon, and the court should have charged upon it. Having failed to do so, and defendant having promptly reserved an exception to the charge for the specific error in omitting to give it, the error becomes fatal. It is expressly provided by statute that the charge of the court shall distinctly set forth the law of the case. If it fails to do so, and an exception is reserved to it and shown by a proper bill on appeal to this court, then it becomes the duty of this court to reverse the case for error, without inquiry as to the effect such error may have had upon the result. (Niland v. The State, 19 Texas Ct. App., 166; Bravo v. The State, 20 Texas Ct. App., 188; Clanton v. The State, Id., 616; Paulin v. The State, 21 Texas Ct. App., 486; Smith v. The State, ante, 316.)
Because the court erred in not submitting the law of negligent homicide of the first degree the judgment is reversed and the cause remanded.
Reversed and remanded.