Willson, Judge.
1. It was not error to overrule the exceptions to the indictment. All the essential elements of murder in the first degree are plainly and directly averred therein. (Dwyer v. The State, 12 Texas Ct. App., 535; Peterson v. The State, Id., 650; Lee Walker v. The State, 14 Texas Ct. App., 609.)
2. It is made to appear from a bill of exceptions that upon the trial the defendant offered to prove by several witnesses that the character of deceased was that he was a violent and dangerous man; such a man as might reasonably be expected to execute a threat made, and to press to a fatal termination a difficulty in which he might be engaged. This proposed testimony was objected to by the State, upon the grounds that it was immaterial and irrelevant; and it was rejected.
As a general rule, evidence as to the character of the person injured is inadmissible. (Whart. Crim. Ev., sec. 68; Stevens v. The State, 1 Texas Ct. App., 591.) But there is a well settled exception to this general rule. In trials for homicide, where the evidence presents the issue of self-defense, the general character of the deceased may be proved by the defendant, to show that he, the defendant, was justified in believing himself in danger of losing- his life, or of sustaining- serious bodily injury from the deceased. (Horbach v. The State, 43 Texas, 242; Stevens v. The State, 1 Texas Ct. App., 591; Whart. Cr. Ev., sec. 69, et seq.; 1 Whart. Am. Cr. Law, 641; Creswell v. The State, 14 Texas Ct. App., 1.
In Horbacli’s case (supra) the question of the admissibility of such evidence is exhaustively discussed, and, after reviewing the authorities, the court says: “ It may be deduced from these authorities that the general character of the deceased for violence may be proved when it would serve to explain the actions of the deceased at the time of the killing; that the actions which it would serve to explain must first be proved before it would be [17]*17admissible as evidence; that if no such acts were proved as it would serve to explain, its rejection, when offered in evidence, would not be error; and that, if rejected when a proper predicate has been established for its admission, it is held to be error. This results in what has been previously attempted to be developed, that the general character of the accused for violence should be allowed to be proved, not as a substantive fact, in whole or in part abstractly constituting a defense, but as auxiliary to, and explanatory of, some fact or facts proved to have occurred at and in connection with the killing, which tend to establish a defense, when thereby aided by furnishing reasonable ground for the belief on the part of the slayer that he is then in immediate and imminent danger of the loss of his life from the attack of his assailant. It is observable in most of these cases that it is said that the evidence of character for violence is admissible in a doubtful case. It can hardly be meant by this that it is admissible only in a doubtful case of guilt; for, if that is doubtful, there is no need of proof of character, or anything else, to help out the defense. The explanation, it is submitted, is that th e person killing is presumed to have committed murder by the act of killing, and in arraying the facts to establish that he acted in self-defense, if an act of the deceased at the time of the killing is of doubtful import, dr is otherwise of a character that it would be explained and construed more favorably for the accused by adding to it the proof of the character of the deceased for violence, then such proof is admissible.” Applying these rules to the case we are considering, we think the court erred in rejecting the proposed evidence of the character of the' deceased. Self-defense was relied upon by the defendant, and the evidence presented this issue. It was in proof that at the time of the killing, the deceased had assaulted, and was in the act of striking the defendant with a quirt. Here, then, was an act on the part of the deceased, that evidence of his character might serve to explain, and cause it to be construed more favorably for the defendant. It might add much strength to the defense, or, in the estimation of the jury, it might have no weight whatever. It was not for the trial judge, nor is it for this court, to determine the effect to be given to such testimony. That was a matter for the jury alone to pass upon, and it was the defendant’s right to have the testimony submitted for the consideration of the jury, in connection with the other facts of the case.
[18]*183. A few moments before the killing, defendant and deceased had exchanged angry words, and deceased had gone away from where defendant was. One John Lindley, who was present with defendant, slapped defendant on the shoulder and told him to go ahead; that he, Lindley, was with him, and had the money to back him in whatever he might do. This declaration of Lindley was admitted in evidence, over the objections of defendant, and this was excepted to at the time. We think this testimony was admissible, without reference to the question as to whether or not Lindley was proved to be a có-conspirator with defendant in the commission of the homicide. It was a statement made by Lindley in the presence of, and to the defendant. Hr. Wharton says: “If A, when in B’s presence and hearing, makes statements which B listens to in silence, interposing no objection, A’s statement may be put in evidence against B, whenever B’s silence is of such a nature as to lead to the inference of assent.” (Whart. Cr. Ev., sec. 679.)
Upon the same principle, we think the testimony of the witness Wilkins, detailing the declarations of Phelps, made at the time of the difficulty between defendant and Swain, was competent, and that the court did not err in admitting it. We cannot regard this testimony as objectionable upon the ground that it was irrevelant or immaterial. It tended to establish the condition of defendant’s mind, and evil intention on his part. However vague and unsatisfactory it may be to prove malice, still it cannot be said that it has no bearing in that direction, and it was for the jury to determine the consideration to be given to it in connection with the other evidence in the case.
4. Defendant offered John Lindley as a witness in his behalf, and the State objected to the witness on the ground that said witness stood indicted for the murder of Boyd, as an accomplice with defendant, and had not yet been tried upon said charge. To sustain this objection, the State introduced the indictment against Lindley, charging him as a principal in the murder of Boyd. This indictment was pending-in the same court in which the trial of this case was progressing, and it was judicially known to the court that Lindley had not been tried upon and acquitted of the charge. It does not appear from- the record that any question was made as to the identity of the transaction for which Lindley stood indicted, with the one for which defendant was being tried. Prima facie, the indictment against Lindley, we think, showed the transactions to be one and the [19]*19same, and authorized the court to so regard them, in the ah' sence of anything to the contrary being shown. It being thus shown that Lindley stood indicted for the same murder for which the defendant was on trial, the court below held him to be an incompetent witness to testify in behalf of the defendant, and we think held correctly.
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Willson, Judge.
1. It was not error to overrule the exceptions to the indictment. All the essential elements of murder in the first degree are plainly and directly averred therein. (Dwyer v. The State, 12 Texas Ct. App., 535; Peterson v. The State, Id., 650; Lee Walker v. The State, 14 Texas Ct. App., 609.)
2. It is made to appear from a bill of exceptions that upon the trial the defendant offered to prove by several witnesses that the character of deceased was that he was a violent and dangerous man; such a man as might reasonably be expected to execute a threat made, and to press to a fatal termination a difficulty in which he might be engaged. This proposed testimony was objected to by the State, upon the grounds that it was immaterial and irrelevant; and it was rejected.
As a general rule, evidence as to the character of the person injured is inadmissible. (Whart. Crim. Ev., sec. 68; Stevens v. The State, 1 Texas Ct. App., 591.) But there is a well settled exception to this general rule. In trials for homicide, where the evidence presents the issue of self-defense, the general character of the deceased may be proved by the defendant, to show that he, the defendant, was justified in believing himself in danger of losing- his life, or of sustaining- serious bodily injury from the deceased. (Horbach v. The State, 43 Texas, 242; Stevens v. The State, 1 Texas Ct. App., 591; Whart. Cr. Ev., sec. 69, et seq.; 1 Whart. Am. Cr. Law, 641; Creswell v. The State, 14 Texas Ct. App., 1.
In Horbacli’s case (supra) the question of the admissibility of such evidence is exhaustively discussed, and, after reviewing the authorities, the court says: “ It may be deduced from these authorities that the general character of the deceased for violence may be proved when it would serve to explain the actions of the deceased at the time of the killing; that the actions which it would serve to explain must first be proved before it would be [17]*17admissible as evidence; that if no such acts were proved as it would serve to explain, its rejection, when offered in evidence, would not be error; and that, if rejected when a proper predicate has been established for its admission, it is held to be error. This results in what has been previously attempted to be developed, that the general character of the accused for violence should be allowed to be proved, not as a substantive fact, in whole or in part abstractly constituting a defense, but as auxiliary to, and explanatory of, some fact or facts proved to have occurred at and in connection with the killing, which tend to establish a defense, when thereby aided by furnishing reasonable ground for the belief on the part of the slayer that he is then in immediate and imminent danger of the loss of his life from the attack of his assailant. It is observable in most of these cases that it is said that the evidence of character for violence is admissible in a doubtful case. It can hardly be meant by this that it is admissible only in a doubtful case of guilt; for, if that is doubtful, there is no need of proof of character, or anything else, to help out the defense. The explanation, it is submitted, is that th e person killing is presumed to have committed murder by the act of killing, and in arraying the facts to establish that he acted in self-defense, if an act of the deceased at the time of the killing is of doubtful import, dr is otherwise of a character that it would be explained and construed more favorably for the accused by adding to it the proof of the character of the deceased for violence, then such proof is admissible.” Applying these rules to the case we are considering, we think the court erred in rejecting the proposed evidence of the character of the' deceased. Self-defense was relied upon by the defendant, and the evidence presented this issue. It was in proof that at the time of the killing, the deceased had assaulted, and was in the act of striking the defendant with a quirt. Here, then, was an act on the part of the deceased, that evidence of his character might serve to explain, and cause it to be construed more favorably for the defendant. It might add much strength to the defense, or, in the estimation of the jury, it might have no weight whatever. It was not for the trial judge, nor is it for this court, to determine the effect to be given to such testimony. That was a matter for the jury alone to pass upon, and it was the defendant’s right to have the testimony submitted for the consideration of the jury, in connection with the other facts of the case.
[18]*183. A few moments before the killing, defendant and deceased had exchanged angry words, and deceased had gone away from where defendant was. One John Lindley, who was present with defendant, slapped defendant on the shoulder and told him to go ahead; that he, Lindley, was with him, and had the money to back him in whatever he might do. This declaration of Lindley was admitted in evidence, over the objections of defendant, and this was excepted to at the time. We think this testimony was admissible, without reference to the question as to whether or not Lindley was proved to be a có-conspirator with defendant in the commission of the homicide. It was a statement made by Lindley in the presence of, and to the defendant. Hr. Wharton says: “If A, when in B’s presence and hearing, makes statements which B listens to in silence, interposing no objection, A’s statement may be put in evidence against B, whenever B’s silence is of such a nature as to lead to the inference of assent.” (Whart. Cr. Ev., sec. 679.)
Upon the same principle, we think the testimony of the witness Wilkins, detailing the declarations of Phelps, made at the time of the difficulty between defendant and Swain, was competent, and that the court did not err in admitting it. We cannot regard this testimony as objectionable upon the ground that it was irrevelant or immaterial. It tended to establish the condition of defendant’s mind, and evil intention on his part. However vague and unsatisfactory it may be to prove malice, still it cannot be said that it has no bearing in that direction, and it was for the jury to determine the consideration to be given to it in connection with the other evidence in the case.
4. Defendant offered John Lindley as a witness in his behalf, and the State objected to the witness on the ground that said witness stood indicted for the murder of Boyd, as an accomplice with defendant, and had not yet been tried upon said charge. To sustain this objection, the State introduced the indictment against Lindley, charging him as a principal in the murder of Boyd. This indictment was pending-in the same court in which the trial of this case was progressing, and it was judicially known to the court that Lindley had not been tried upon and acquitted of the charge. It does not appear from- the record that any question was made as to the identity of the transaction for which Lindley stood indicted, with the one for which defendant was being tried. Prima facie, the indictment against Lindley, we think, showed the transactions to be one and the [19]*19same, and authorized the court to so regard them, in the ah' sence of anything to the contrary being shown. It being thus shown that Lindley stood indicted for the same murder for which the defendant was on trial, the court below held him to be an incompetent witness to testify in behalf of the defendant, and we think held correctly. “Persons charged as principals, accomplices or accessories, whether in the same indictment or different indictments, cannot be introduced as witnesses for one another; but they may claim a severance, and if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others.” (Code Grim. Proc., Art. 731.) In order to render a principal, accomplice or accessory incompetent to testify under the foregoing article, we do not think that it is necessary that the indictment against him should show that he committed the offense together with the defendant. If he is charged, as in this case, with committing it alone, we think it is competent for the State to show, aliunde the indictment, that the defendant was also engaged or concerned in the same act, and thus establish his in competency to testify in behalf of the defendant.
5. numerous objections are made by the defendant to the •charge of the court. It is urged that it gives undue prominence to the question of express malice; that it assumes false hypotheses, and argues, as it were, express malice from every conceivable standpoint. We have given the charge a very careful consideration with respect to all the objections urged against it. It is quite lengthy, but we are not prepared to say that it is unnecessarily so, in view of the many questions of law presented by the evidence. It is true that upon the subject of express malice it is unusually full and explicit, and is, perhaps, obnoxious to the criticism that it gives to that question undue prominence. In the case of Willis & Bro. v. McNeill, 57 Texas, 465, “it is suggested that, .if a distinct legal proposition, as applicable to the issues and evidence, is once clearly announced in the charge, its repetition may tend to impress the jury with the belief that, in the opinion of the presiding judge, the facts demand its application in the particular case, and thus their verdict may thereby be unintentionally influenced.” Among other, instructions upon express malice we find the following in the ■charge: “Express malice is a condition of the mind which is to be inferred from the existence of external circumstances, capable of proof, such as previous difficulties, deliberate preparation, [20]*20or by any other fact or circumstances connected with or attending the killing, which satisfies the jury beyond a reasonable doubt that the accused acted from a deliberately formed design and sedate mind.” And again, the charge further reads: “Express malice may be inferred by the cool, calm and circumspect deportment and bearing of a party when the act is done, or immediately prior or subsequent thereto; his apparent freedom from passion or excitement; the absence of any obvious or known cause to disturb his mind or to arouse his passions; the nature and character of the act itself; the instrument used and the manner of committing the act; the declarations of the party, showing the state of his mind and the motives and purposes with which he acts; and all the other facts and circumstances connected with the transaction are to be taken into consideration by the jury in determining the state or condition of the mind at the time the determination to take life was formed. But, in the absence of any fact or circumstance in proof, which satisfies the jury beyond a reasonable doubt that the killing originated in, and resulted from, a deliberately formed design of a sedate mind, the killing would not be with express malice.”
To the trained legal mind, these clauses of the charge would be properly understood and correctly construed; and as legal propositions, understood as the learned judge intended they should be, they are unobjectionable. But are they not calculated to mislead the unskilled minds of jurors—minds not educated and trained to perceive and appreciate the nice, but, at the same time, often vital, distinctions of the law F Thus, they are told that express malice may be inferred from the existence of certain facts. We understand the learned judge to mean that, express malice may be evidenced by external circumstances proved to exist'; that is, that certain facts and circumstances, having been proved to exist, we may from these infer the existence of' express malice. We do not construe these clauses of the charge as dispensing with the proof of express malice, but we are not sure but that a jury might concludertherefrom that, even in the absence of any proof of express malice, they were at liberty to infer or presume its existence from the fact of the killing-alone. “Malice of all kinds must be inferred, because it consists in a quality or state of the mind, either actual or imputed.”' (McCoy v. The State, 25 Texas, 41.) But it can only be inferred from facts proved, and to warrant the inference of express malice there must be reasonably satisfactory proof of external cir-[21]*21cum stances manifesting an actual and deliberate intention unlav? fully to take the life of another or do him great bodily harm. “The evidence of such malice which will authorize its existence to be inferred must arise from external circumstances discovering that inward intention, as lying in wait, menacings antecedent, former grudges, deliberate compassings, and the like, which are various according to variety of circumstances.” (McCoy v. The State, 25 Texas, 41; Jordan v. The State, 10 Texas, 479.) While we believe the clauses of the charge which we have quoted contain correct propositions of law, we think they are fairly amenable to the criticism that the jury might conclude therefrom that they might infer express malice without proof of such facts as would warrant the inference.
Another objection made to the charge is, that it gives, abstractly, the law of murder in the sécond degree, and nowhere attempts to apply the same to the facts of the case. With reference to murder in the second degree, the charge is as follows : “If the killing is the result of a rash, hasty or inconsiderate act, done without deliberation or premeditation; or if it is the result of some sudden and unexpected quarrel, without any deliberate intention to take life, the killing is with implied malice, and the offense would be murder in the second degree. Where the killing is done under such circumstances as to constitute murder, but the design to kill does not originate in or result from a formed design, and sedate and deliberate mind, the killing would be from implied malice, and the offense murder in the second degree.” This charge was not excepted to at the trial, nor did the defendant request any special charge, applying the abstract proposition of law to any particular state of facts in evidence.
Conceding that the charge is deficient in not applying the law to particular facts, it is not such a fundamental error as we would feel called upon to revise in the absence of a bill of exception, or of a special charge requested and refused. In Hackett v. The State, 13 Texas Court of Appeals, 406, it is said: “ The rule upon this subject is that instructions should not be presented in the form of abstract propositions, but should be constructed upon the evidence in the particular case at bar. A state of facts should be supposed which accords with the evidence; then deduce the legal conclusions applicable to such state of facts.” This rule is also announced in O’Connell v. The State, 18 Texas, 343, and in Burrill v. The State, Id., 713, and should be observed in framing [22]*22instructions to juries. We do not think that the charge upon murder in the second degree, given by the court in this case, is in full compliance with the rule above stated.
Again, it is objected to the charge that it did not fully present the law of self-defense, but restricted the right to take life to too narrow a rule. We are of the opinion that the charge of the court is objectionable in the particular named. It does not instruct the jury that the defendant may have been justified, though, in fact, there was no actual danger of death or serious bodily harm from the attack of deceased. Homicide is justifiable where the party slain is in the act of committing an unlawful and violent attack upon the party killing, such as is calculated to produce a reasonable expectation or fear of death, or some serious bodily injury; and this is true, though it should after-, wards appear that there was, in fact, no danger. (Horbach v. The State, 43 Texas, 242; Marnoch v. The State, 7 Texas Ct. App., 269.) Defendant not only excepted to the charge because it did not present the law of self-defense fully, but he requested a special charge, which presented fully, and we think correctly, the proposition above stated. We think this requested charge, or a similar one, should have been given in connection with the otherwise very full and satisfactory charge of the learned judge upon the law of self-defense.
In all other respects, except in the particulars we have discussed, as far as it undertakes to expound and apply the law of the case, we think the charge of the court is correct, and not obnoxious to the objections made to it.
6. But it is insisted that the charge should have embraced the law of manslaughter, and it was excepted to by the defendant because of its omission to do so, and special instructions presenting the law of manslaughter were requested and refused. We suppose the learned judge declined charging the law of manslaughter because, in his opinion, the evidence did hot demand or authorize such a charge. Without discussing the evidence in the case, we are of the opinion that the issue of manslaughter was sufficiently raised by the facts in proof to require the law of that grade of homicide to be given to the jury. Where there is evidence which presents an issue favorable to the defendant, the trial court should not disregard it, but should accord to the accused, fully and fairly, the submission of the issue to the consideration of the jury. (Williams v. The State, 7 Texas Ct. App., 396; Reed v. The State, 11 Texas Ct. App., 509; Green v. The [23]*23State, 12 Texas Ct. App., 445; King v. The State, 13 Texas Ct. App., 277.) It may be that a charge upon the law of manslaughter in this case would not have affected the result of the trial, or it may be that, had all the rulings of the court and the charge of the court been correct and unexceptionable, the verdict of the jury would have been the same as it is; still, we must look alone to the fact that the defendant is entitled to a fair and impartial trial in accordance with the fixed and certain rules of the law, and when he has been deprived of this legal right it does not rest within the discretion of this court to refuse him a new trial.
Opinion delivered November 7, 1883.
As the judgment must be reversed because of the errors we have specified, it is unnecessary that we should determine other questions presented in the record, as they are of a character that will not probably arise upon another trial of the case. The judgment is reversed and the cause is remanded.
Reversed and remanded.