PRENDERGAST, Judge.
Appellant was convicted of the murder of W. G. Jones, and his punishment assessed at twenty years in the penitentiary. The facts of the ease were established by clear, undisputed and unimpeached testimony.
Deceased was a man of small stature, fifty7four years old and weighed about 125 pounds. He lived with his family at Waterloo, about five and one-half miles north of Taylor. Appellant, as most of the witnesses designated him, was a young man. He was larger than Jones and lived at or near Taylor. One witness said he was about nineteen years old at the time of the trial, in January, 1917.
The day before appellant killed deceased he went to deceased’s place. Mrs. Jones, deceased’s widow, swore he was there and she saw him talking to her husband but did not hear what he was talking about. The next morning about 9 o’clock appellant called up Mrs. Jones over the phone at her home and asked her if deceased was there. She told him he was not but was in the field pulling corn. He asked: “Is he coming to town?” She replied: “He is coming this afternoon.” Appellant said: “I will see him when he comes.” Deceased did go to Taylor that evening with a load of cotton seed, reaching there about 3 o’clock in the afternoon of October 28th. About that time he went to see the assistant county attorney in his office. About an hour and a half thereafter he returned to this attorney’s office and remained there with the attorney and another witness, Mr. Kettler, about ten or fifteen minutes, and had a conversation with the attorney. He and the attorney with Mr. Kettler then left the attorney’s office, which was upstairs over the Eirst National Bank, to go to the office of the justice of the peace, diagonally across two streets in another block, perhaps a little more than a half block distant from the attorney’s office. While Mr. Kettler came downstairs with them he stopped on the sidewalk near the corner at said bank.
Just before deceased and Mr. Kettler went up to the attorney’s office the second time, deceased and Mr. Kettler were talking on the sidewalk at said bank corner. Appellant came up and spoke to them saying, “Howdy do.” He then said, “I want to see you, Mr. Jones.” Jones
replied, “I will see you a little bit later.” Appellant said, “Ho, damn it, I want to see you right now.” Jones said, “You go on now; I don’t want to fool with you.” Appellant then walked away from them, and Jones and Kettler at once went up in the attorney’s office.
Appellant walked down the street about a half block to a store, went in and borrowed an ax handle, which weighed just one pound and a half. He then returned to the bank corner with the ax handle and waited around there, without doubt waiting for Mr. Jones to return to the street from the attorney’s office. Just after what was said between appellant and Jones just above related and before appellant got the ax handle, Mr. John Eojtik, an acquaintance of appellant, approached him, spoke to him and asked him what was the matter. He cried and said: “He got trouble with Mr. Jones; he got trouble. Mr. Jones is to see me next time.” A short time before this Mr. Eojtik saw him across the street from the bank and had some conversation then with him about getting him to take him, the witness, out to Waterloo. At that time appellant said nothing about Mr. Jones. When appellant returned to said bank corner with the ax handle, Mr. Eojtik went to him and spoke to him again and said to him, “You had better let that trouble alone and get on.” But appellant commenced crying and just said, “John, you go away and let me alone.” And the witness walked off from him and had no more talk with him.
When deceased and the attorney left the office of the latter together, going to that of the justice of the peace, they stepped off of the sidewalk at the bank corner and walked side by side until they got about half way across one street. Appellant with his ax handle then stepped off of the sidewalk at the bank corner, following Mr. Jones. After getting a few steps he called to Mr. Jones. Mr. Jones partially turned without stopping and said something. Ho witness could tell what he said. He and the attorney continued going. Appellant continued after Mr. Jones rapidly. Mr. Jones and the attorney proceeded some steps further, without either of them looking back or knowing that appellant was approaching. When he got close enough to Mr. Jones, he raised the ax handle with both hands and overhanded struck Mr. Jones on the right side of his head, to the rear of about the center of his head, an awful blow, which felled Mr. Jones on the street. The attorney said that the crash of the blow attracted his attention, and he turned and saw Jones as he fell upon the ground, though he did not see the blow struck. After striking Jones this blow and felling him to the ground, one witness said that appellant.still held the ax handle in both hands, and gazed at Jones on the ground for a short time. Doubtless seeing he had accomplished his intention of killing him, struck no more hut walked away. Eyewitnesses, who saw and testified to all this, at-once went to, and picked Mr. Jones’ body up and carried it into one of the stores. Mr. Jones never spoke after appellant struck him. A
doctor was immediately summoned and at once had the body removed to his office, where a hurried examination was made, and ascertaining that the wound was a very serious one, had him taken to the sanitarium, where a thorough examination was made of deceased’s skull. The doctors testified that they found his skull crushed in by the blow an area about the size of a large egg. The bones were driven into thé brain tissue. That the skull was broken in as if you would take an egg and knock it. The doctors dressed the wound, removing therefrom two or three pieces of the broken skull about the size of a half dollar. When they first made this thorough examination, and before these bones were removed, a considerable portion of deceased’s brains poured out of the wound. The doctor further testified that while there might be stronger places of the skull than where this blow was struck, it was about the average of the skull; that the skull bones at this point were in two layers; the brain was beneath the second; that this blow crushed both layers. Appellant did not testify at all. When the doctor was testifying that the blow with an ax handle would cause the crushing of deceased skull and his death, appellant admitted that that was the cause of his death. Mr. Jones died a few hours after appellant struck hfm and crushed his skull.
The court gave a full and apt charge submitting murder alone. He correctly stated the case and told the jury what the offense of murder was in accordance with the statute. He correctly and fully defined malice aforethought.
• The appellant complained of the court’s refusal to give his special charge, as follows: “That before you can convict the defendant in this case you must find from the evidence and beyond a reasonable doubt that at the time the defendant struck the deceased, if he did strike him, with an ax handle that the defendant had the specific intent* to kill deceased, and if you have a reasonable doutyt about the intention of the defendant, you must acquit him.” The judge at the time refused this charge, stating that it was covered by the general charge of the court.
The court in his main charge in one paragraph instructed the jury: “To warrant a conviction for murder, the jury must be satisfied from the evidence, beyond a reasonable doubt, that the defendant, in the .commission of the homicide, was actuated by malice aforethought, and with
specific intent to Trill.”
In two other paragraphs he instructed them: “What is meant by deadly weapon, whenever used in this charge, is meant a weapon which from the manner used is calculated or likely to produce death or serious bodily injury.
“The instrument' or means'by which a homicide is committed are to be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to produce death, it is not to be
presumed that death was designed, unless from the manner in which it was used, such intention evidently appears.”
Then,- in the next paragraph, submitting the case to the jury for a finding, he instructed: “Bearing in mind all the instructions given you, if you believe from the evidence in this case beyond a reasonable doubt that the defendant, John Merka, in the County of Williamson, State of Texas, on or about the 38th day of October, A. D. 1915, did then and there unlawfully and with malice' aforethought
and with intent to hill,
and with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, strike one W. G. Jones on the head with an ax handle and thereby killed the said W. G. Jones, as charged in the indictment, you will find the defendant guilty of murder as charged and assess his punishment at death, or by confinement in the penitentiary for life or for any term of years not less than five, as the jury may determine and state in their verdict. And unless the jury so find from the evidence the facts to be beyond a reasonable doubt, then' they will acquit the defendant and say by their verdict 'not guilty.’ ”
In addition, in a separate paragraph, the court told the jury: “In all criminal cases the burden of proof is on the State. The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and in case you have a reasonable doubt as to the defendant’s guilt you will acquit him, and say by your verdict 'not guilty.’”
Undoubtedly the court’s charge fully covered appellant’s special charge, and the judge correctly refused to give it. Appellant objected to the court’s charge because he did not submit the question of manslaughter, claiming that the evidence raised that issue, and asked a charge on that subject. The court refused to charge on that subject on the ground, expressly stated by him, that the evidence did not raise the issue. The judge’s action was correct. The evidence did not raise manslaughter.
Even if manslaughter could have been raised by the mere fact that the ax handle might not have been a deadly weapon per se, and that appellant might not have intended to kill the deceased when he struck the fatal blow, yet he cut himself off from u submission of that issue by specially requesting his special charge above copied. Doubtless the court, because of that special charge and appellant’s contention therefor, instructed the jury as he did as copied above, “To warrant a conviction for murder, the jury must be satisfied from the evidence beyond a reasonable doubt that the defendant . . . was actuated by malice aforethought,
and with specific intent to hill”;
and required the jury to believe beyond a reasonable doubt that at the time he struck him he did so
with intent to hill,
before they could convict him of murder; “and unless the jury so find from the evidence the facts to be beyond a
reasonable doubt, then they will acquit the defendant and say by their verdict ‘not guilty/” To have then told the jury that if he did not intend to kill to find him guilty of manslaughter, would have been in direct conflict with his charge telling them if he did not intend to kill “you must acquit him.”
Our statute (art. 1128 et seq.) on manslaughter is clearly and fully to the effect, as has many, many times been held by this court, that to constitute manslaughter two things are absolutely necessary: first, sudden passion; and, second, that that passion must arise from an adequate cause. If either of these requisites are wanting, an unlawful homicide can not be manslaughter. .
In Davis v. State, 70 Texas Crim. Rep., 37, this court, through Judge Davidson, said: “It may be laid down as an uncontroverted proposition that two things are requisite to constitute manslaughter: first, adequate cause; second, existing passion. If these co-exist, the homicide is manslaughter. If they do not combine to co-exist, it may be murder in one of the degrees.”
In Redman v. State, 67 Texas Crim. Rep., 374, this court said: “The statute itself defining manslaughter has two requisites to reduce voluntary homicide to manslaughter, towit: sudden passion, and that that passion must arise from an adequate cause. If either of these requisites are lacking, the offense can not be manslaughter but must be murder in one or the other degrees.”
In McKinney v. State, 8 Texas Crim. App., 626, this court, through Presiding Judge White, said: “A killing upon such sudden passion as is mentioned may be murder in the second degree, even though the passion was anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection. To make such killing manslaughter, there must actually have existed not only such state or emotion of the mind, but the
adequate cause
which produced them must also exist. Penal Code, art. 1137. Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, may be sufficient to cause the emotions of the mind known as anger, rage, sudden resentment, or terror, to the extent even of rendering it incapable of cool reflection, and yet a killing under such circumstances would not be manslaughter. Why? Because such insulting words or gestures, or such assault and battery,
are not adequate causes
(P. C., art. 1131), and manslaughter can not be predicated upon any voluntary homicide upon sudden passion not arising from an
adequate cause.
(P. C., art. 1128.)”
To precisely the same effect as these cases quoted from is the very recent case of Marshbanks v. State, 192 S. W. Rep., 247. And also Wilson v. State, 71 Texas Crim. Rep., 403; Kelly v. State, 68 Texas Crim. Rep., 317, 151 S. W. Rep., 304; Clore v. State, 26 Texas Crim. App., 24; Hill v. State, 11 Texas Crim. App., 456; Neyland v. State,
13 Texas Crim. App., 536; Blackwell v. State, 29 Texas Crim. App., 194; Miller v. State, 31 Texas Crim. Rep., 609; Ex parte Jones, 31 Texas Crim. Rep., 422, and a great many other cases.
The testimony herein not only shows no adequate cause, but it excludes any such idea. ■ It also not only fails to show any sudden passion of appellant aroused by any adequate cause, but it affirmatively shows, and authorized the jury to find and believe, that appellant bore malice against deceased, and for that reason slew him, and the jury so believed and found. The evidence would not have authorized the jury to believe that any passion of appellant against deceased, even if it was sufficient to show any at all other than malice, was caused by what occurred at the time he killed deceased or that day prior thereto, sought, and had an interview with, deceased at the time. What then It shows that appellant went to deceased’s place the day before and occurred and was said the State could not prove. Appellant had the right to refuse to testify and tell anything about it. He had killed the deceased, so that deceased could not tell it. Ho one was present at the time. Deceased’s widow did not hear what was said and could testify only, as she did, that appellant talked to the deceased at the time. It further shows that he again sought the deceased the next morning, calling for him at his residence over the phone, and when Mrs. Jones told him that he was in the field pulling corn, he asked if he was coming to 'town. She told him he was that evening, and then he said that he would see him at that time, and he did. He told Mr. Eojtik just a few minutes before he killed the deceased that he had trouble with Mr. Jones and that Mr. Jones would see him the next time. He thereupon armed himself with an ax handle. This handle was produced, identified, and introduced in evidence. The jury saw and must have handled it. They, therefore, from it and the other testimony, could tell with certainty, as used and the effect it had, that it was a deadly weapon. (Crutchfield v. State, 68 Texas Crim. Rep., 468; Luttrell v. State, 70 Texas Crim. Rep., 183.) From all the facts and circumstances the jury were clearly justified in believing it was a most deadly weapon. As used it killed deceased. As soon as he procured it he returned to where he knew Mr. Jones would necessarily return shortly. He laid in wait there for him. When Mr. Jones did return where he must have seen him he did not then approach him to his face and say or do anything to him, but he waited till Mr. Jones got some distance from him with his back to him. Then he stealthily slipped up behind him, and without any notice to him, and without Mr. Jones knowing his danger, assassinated him by striking him a most powerful blow on the back of his head, crushing his skull and felling him like a beast to the ground, from which, in a few hours, he died. These facts all show, .and authorized the jury to believe, as they did, that appellant bore malice against Mr. Jones, and caused by this malice aforethought
he stealthily slipped upon him from behind and struck him such a blow on the skull with such an instrument as to crush his skull and thereby unquestionably show that his intention was to kill him as he did.
Appellant relies upon Johnson v. State, 42 Texas Crim. Rep., 377, as in point on the question of manslaughter. Some expressions of Judge Henderson in the opinion in that case if taken alone might be construed as tending to show that from the mere fact that the instrument used might not be a deadly weapon
per se
that that would raise the issue of manslaughter, but when rightly considered in connection with the whole opinion and all the facts of that case, that fact alone was not held to raise manslaughter, but that it should be considered by the jury in determining whether or not appellant intended to kill the deceased. Judge Henderson in that case says that the stick used in that instance was not a weapon ordinarily calculated to produce death. “At least this fact should have been presented to the jury, SO' that they might pass upon it.” That was done in this case fully and completely by the charge of the court. He expressly told them what was meant by a deadly weapon in clear language and just such language as has all the time been approved as correct by this court. (2 Branch’s Ann. P. C., p. 935.) Prom the decisions of this court Mr. Branch correctly says: “A charge is correct which informs the jury that a deadly weapon is one which from the manner used is calculated or likely to produce death or serious bodily injury. Kouns v. State, 3 Texas Crim. App., 13; McReynolds v. State, 4 Texas Crim. App., 328; Hardy v. State, 36 Texas Crim. Rep., 400; Wilson v. State, 37 Texas Crim. Rep., 159; Henry v. State, 54 S. W. Rep., 592; Tollett v. State, 55 S. W. Rep., 335; Leal v. State, 46 Texas Crim. Rep., 336; Prescott v. State, 54 Texas Crim. Rep., 485; Harris v. State, 72 Texas Crim. Rep., 491, 162 S. W. Rep., 1150.” Judge Henderson further' said in; said Johnson ease that the issue therein for the jury was whether the circumstances showed appellant evidently intended to take the life of the deceased by the blow given; and if he did so, then he might be guilty of murder or manslaughter “according to the
other
facts of the case.” In that case it does not appear that the court told the jury what would be a deadly weapon as the court did in this case. Doubtless “the other facts” in that case might have raised manslaughter, but in this case they did not.
Now further as to the question of whether or not the evidence in this case was sufficient to show and authorize the jury to find as they did that appellant
intended
to kill the deceased. The question of intent, as held by Judge Hurt in Fitch v. State, 37 Texas Crim. Rep., 500, and other cases where the instrument used in the killing might not be a deadly weapon
per se,
is a fact to be found by the jury' froin all the evidence and is not a matter of law alone. In this case, as shown, this question of fact was expressly left to the jury for its finding
from ail of the testimony. The court did not charge as a matter of law that appellant’s intent was to kill, but left that question to the jury for it to find and determine as a fact. Now, how is this intent to be shown ? As stated, appellant did not testify himself that he had no such intent. He had the right to testify and he had the right to decline. He declined. Therefore, the question of intent must be ascertained from all the facts and circumstances.
Judge White in his Annotated Penal Code, section 74, says:
“A
man is always presumed to intend that which is the necessary, or even probable consequence of his acts, unless the contrary appears. McCoy v. State, 25 Texas, 42; Aiken v. State, 10 Texas Crim. App., 610; Lane v. State, 16 Texas Crim. App., 172; High v. State, 26 Texas Crim. App., 546; Wood v. State, 27 Texas Crim. App., 393; Hatton v. State, 31 Texas Crim. Rep., 586; Shaw v. State, 34 Texas Crim. Rep., 435.” Our statute (art. 1.149, P. C.) in homicide cases expressly states in effect when and how the intent of an accused when he has killed another may be found, stating that where a homicide occurs even under the influence of sudden passion but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide unless it appear that there was an intention to kill. This statute was expressly given to the jury by the judge in his charge, and as stated, the question of what appellant’s intent was at the time when he struck the fatal blow was to be found as a matter of fact by the jury, and they were told that they must believe beyond a reasonable doubt that at the time he struck the blow he did so with the specific intent to kill, and unless the jury found beyond a reasonable doubt from the evidence that that was his specific intent at the time that they not only could not convict him of murder but they must find him not guilty. There can be no question but from the charge in this case the jury had to find and believe beyond a reasonable doubt that it was appellant’s intention to kill the deceased at the time he struck the blow, and unless they did they had to acquit him. The evidence was amply sufficient for the jury to believe that that was his intent, and they so found.
Another contention by appellant is that the court refused to submit the issue of negligent homicide in the second degree. And he asked a charge on that subject which the court refused to give, stating thereon at the time that the evidence did not raise the issue of negligent homicide. The court’s action was right. The evidence did not raise the issue of negligent homicide. A case might well be supposed where negligent homicide would arise. Thus, in this ease if there had been any testimony, for instance, that appellant merely intended to give the deceased a beating with the ax handle and that as he attempted to strike him therewith on some other portion of his body other than his skull the deceased dodged or stumbled or he himself stumbled and he accidentally struck him on the head when he intended to strike him else
where on the hody which would not have proved fatal, then negligent homicide might have been in the case, but there is no such state of fact, and none such could be inferred from the evidence. The evidence from no viewpoint would have authorized or justified the court to have submitted a charge on negligent homicide either from the statutes on the subject or any decision thereunder. Mr. Branch, in 2 Branch’s Annotated Penal Code, section 1990, truly states the law thus: “The facts showing an intentional blow without negligence, the issue of negligent homicide is not raised; on the contrary, if the defendant did not intend to kill but intended to beat the deceased with a stick, a weapon not necessarily deadly but calculated to inflict and which did inflict serious bodily injury, the issue of aggravated assault but not of negligent homicide is raised.” He further says: “An intentional killing is not negligent homicide. Thompson v. State, 2 Texas Crim. App., 558; Dwyer v. State, 12 Texas Crim. App., 540; Tomerlin v. State, 26 S. W. Rep., 66; Flynn v. State, 43 Texas Crim. Rep., 407.” Again he says: “The court need not charge on negligent homicide in the absence of facts showing no apparent intention to kill. Aiken v. State, 10 Texas Crim. App., 617; Houston v. State, 34 Texas Crim. Rep., 588; Clifton v. State, 47 Texas Crim. Rep., 478.”
The evidence may have raised, and it may have been proper ior the court to have charged on aggravated assault, but the record conclusively shows that the court under the statute, after the evidence was closed and before the argument was begun submitted his charge to the appellant and his attorneys for their action thereon. They did not then make any objection whatever to the court’s charge because he had failed or omitted to charge on aggravated assault. neither did they at the time request any special charge on that subject. However, after the" charge of the court had been read to the jury and the argument of all the attorneys concluded except when the district attorney, who made the final argument for the State, was about concluding his argument, the appellant’s attorneys for the first time then asked a special charge on aggravated assault. The court refused to give it at that time, stating the facts above as the reason therefor. His action was strictly in compliance with the statute which forbade him to give a charge at that stage qf the case. (Art. 737a, C. C. P., as added by the Act of April 5, 1913, p. 278.)
The judgment is affirmed.
Affirmed.