LATTIMORE, Judge.
Conviction for murder; .punishment, ninety-nine years in the penitentiary.
That appellant killed his wife is admitted. He said he cut her with a knife. In addition to the stab wounds, the facts showed that her skull was crushed by a blow in the back of the head which caused here eyes to protrude. A bloody axe was near her body. No facts supports any theory of justifiable homicide.
Appellant seems to rely on a supposed right to kill his wife if she was taken in adultery, or under circumstances reasonably justifying the belief that she had committed adultery, or was about to commit same. Such is not the law. Billings v. State, 102 Texas Crim. Rep., 338, 277 S. W., 687; Jiminez v. State, 103 Texas Crim. Rep., 163, 280 S. W., 829; Jordan v. State, 107 Texas Crim. Rep., 137, 294 S. W., 1109. On the witness stand appellant gave conflicting accounts. He said his wife spent the afternoon at the apartment of Gus Riggs and his wife; that he went to said place about 6 o’clock and remained until about 7:30 or 8. That while there appellant’s wife asked Bertha Riggs for the key to the toilet. The toilet used in common by occupants of the apartment, opened on an [477]*477alley. A door originally leading from the Riggs’ apartment to this toilet had been nailed up. Only a wall was between the Riggs’ apartment and the toilet. Appellant testified that after his wife got the key to the toilet and left the room, he waited some twenty or thirty minutes and then himself left to go to his home for the purpose of getting his wife’s fur coat and shoes. Returning with said articles, he knocked at Riggs’ door, and upon invitation entered. We are summarizing from appellant’s testimony. He asked if his wife had come back, and Bertha Riggs told him she had not. Appellant said he did not know where she could be, that she got the key to the toilet, and it was now wide open and she was not in there. He asked Bertha Riggs if Smith was at home. Smith was a negro man who occupied the other downstairs apartment of said house. Bertha said she did not think he was. Appellant went to Smith’s door and pulled on it but it was hooked. Smith came to the door and was asked by appellant if his wife was there. Smith said no. Appellant asked Smith if he could come in and see, that he believed she was there. He testified that he heard some one in the bed. Smith refused to let him in, saying he was sleepy and had to go to bed early. Appellant said: “If you won’t let me come in and see, I’ll have a man here in a minute that you will let see,” and ran down toward the corner of the block but doubled back and heard Bertha Riggs say: “Come on out now, he is gone.” Bertha was standing at the toilet door. When she made that statement appellant’s wife came out of Smith’s room, having on nothing but a slip and Bertha Riggs’ coat. He walked behind her into the house and jumped on her, using his knife, and did not know how bad he hurt her. He was standing near the toilet when his wife came out of Smith’s room and went into the Riggs’ room. He did not jump on her out in the yard but followed her into the house where she turned and looked at him and he cut her. He did not know whether he used the axe or not. The above reflects his direct testimony. On cross-examination he swore that he saw his wife in Smith’s room; that he went around to the door of the toilet and saw her in said room with Smith but did not go on in because it was a violation of the law to break into somebody’s house. He further said he had seen her in said room and knew she was there when he went around the corner of the block; also that after he saw her in there was when he went to Smith’s door and knocked and asked the latter if his wife was in there. That he knew she was in there when he told Smith he would go and get a man. He knew this because he saw her in there. He admitted that he might have said on direct examination that he did not see her in there, but in fact he did see her. He admitted that he said nothing to his wife before he stabbed her; asked her for no explanation. She was doing nothing to him when he stabbed her. Did not know how long he stayed there and watched her before he stabbed her.
[478]*478He also swore he suspected that his wife was in Smith’s room when she asked for the key to the toilet. He said he heard her open the toilet door and go in, and that he sat there about twenty minutes and she did not come back, and he never had heard the door (toilet door) open again, so he just went there and looked and she was not in the toilet and the key was still in the door. He did not look-in Smith’s room then, but when he came back from his trip home, — some eighteen blocks, — he pushed open the door between Smith’s room and the toilet and looked in Smith’s room. He said he did not go into Smith’s room because he was scared; Smith was liable to have a pistol. He said he saw his wife in said room sitting on the side of the bed and Smith was in there with her. He did not call to her or tell her to come out, nor did he then knock on the door. His explanation of why he did not tell these things on direct examination was that he did not think about them, but he knew he did look into that room and his wife was within four or five feet of him when he did so.
Practically all of appellant’s testimony was contradicted. Smith was placed on the stand by the state and denied that the woman was in his room at any time, and said that he never met her except a few moments in the Riggs’ apartment that evening. He testified that appellant did come to his room and ask if his wife was in there and was assured by witness that she was not. He said he heard the screaming later in the Riggs’ apartment. He affirmed that the bed in his room was in such position that it could not be seen by a person in the toilet, even if the door was open. This was also affirmed by other witnesses. Riggs and his wife swore that appellant and his wife were at their apartment on the night in question; that deceased ate with them. Both said they sat around and talked, and that deceased bade them goodnight and went away. They did not know where she went. Appellant sat a while longer and left. He said nothing about his wife before going. Both testified that they then went to bed, and the next they knew was when they were awakened by the screaming of deceased in the front room of their apartment. They ran out and deceased was lying on the floor. Bertha Riggs denied the statement attributed to her by appellant. Other testimony showed the presence of a bloody axe and the character of the wounds on the body of deceased.
Bill of exception No. 1 complains of the refusal of a continuance. No process is attached to the application or shown in the bill. We are not impressed with the materiality of the absent testimony. The refusal was not erroneous.
Bill No. 2 brings forward exceptions to the court’s charge. The exception that same should have told the jury that appellant should be acquitted if he found his wife in such situation as to cause him to believe she had committed adultery, or was about to commit adultery, with Smith, [479]*479did not contain a correct statement of the law and is of no merit. The second round of said exceptions was that the charge omitted the affirmative defense of appellant, viz: that he had seen his wife in a compromising position with Smith under circumstances which reasonably led him to believe that they had committed adultery, or were about to do so; that said charge fails to apply and give appellant the benefit of such facts as applicable to malice aforethought. We confess ourselves not quite able to perceive the specific character of such an exception. Pinkerton v.
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LATTIMORE, Judge.
Conviction for murder; .punishment, ninety-nine years in the penitentiary.
That appellant killed his wife is admitted. He said he cut her with a knife. In addition to the stab wounds, the facts showed that her skull was crushed by a blow in the back of the head which caused here eyes to protrude. A bloody axe was near her body. No facts supports any theory of justifiable homicide.
Appellant seems to rely on a supposed right to kill his wife if she was taken in adultery, or under circumstances reasonably justifying the belief that she had committed adultery, or was about to commit same. Such is not the law. Billings v. State, 102 Texas Crim. Rep., 338, 277 S. W., 687; Jiminez v. State, 103 Texas Crim. Rep., 163, 280 S. W., 829; Jordan v. State, 107 Texas Crim. Rep., 137, 294 S. W., 1109. On the witness stand appellant gave conflicting accounts. He said his wife spent the afternoon at the apartment of Gus Riggs and his wife; that he went to said place about 6 o’clock and remained until about 7:30 or 8. That while there appellant’s wife asked Bertha Riggs for the key to the toilet. The toilet used in common by occupants of the apartment, opened on an [477]*477alley. A door originally leading from the Riggs’ apartment to this toilet had been nailed up. Only a wall was between the Riggs’ apartment and the toilet. Appellant testified that after his wife got the key to the toilet and left the room, he waited some twenty or thirty minutes and then himself left to go to his home for the purpose of getting his wife’s fur coat and shoes. Returning with said articles, he knocked at Riggs’ door, and upon invitation entered. We are summarizing from appellant’s testimony. He asked if his wife had come back, and Bertha Riggs told him she had not. Appellant said he did not know where she could be, that she got the key to the toilet, and it was now wide open and she was not in there. He asked Bertha Riggs if Smith was at home. Smith was a negro man who occupied the other downstairs apartment of said house. Bertha said she did not think he was. Appellant went to Smith’s door and pulled on it but it was hooked. Smith came to the door and was asked by appellant if his wife was there. Smith said no. Appellant asked Smith if he could come in and see, that he believed she was there. He testified that he heard some one in the bed. Smith refused to let him in, saying he was sleepy and had to go to bed early. Appellant said: “If you won’t let me come in and see, I’ll have a man here in a minute that you will let see,” and ran down toward the corner of the block but doubled back and heard Bertha Riggs say: “Come on out now, he is gone.” Bertha was standing at the toilet door. When she made that statement appellant’s wife came out of Smith’s room, having on nothing but a slip and Bertha Riggs’ coat. He walked behind her into the house and jumped on her, using his knife, and did not know how bad he hurt her. He was standing near the toilet when his wife came out of Smith’s room and went into the Riggs’ room. He did not jump on her out in the yard but followed her into the house where she turned and looked at him and he cut her. He did not know whether he used the axe or not. The above reflects his direct testimony. On cross-examination he swore that he saw his wife in Smith’s room; that he went around to the door of the toilet and saw her in said room with Smith but did not go on in because it was a violation of the law to break into somebody’s house. He further said he had seen her in said room and knew she was there when he went around the corner of the block; also that after he saw her in there was when he went to Smith’s door and knocked and asked the latter if his wife was in there. That he knew she was in there when he told Smith he would go and get a man. He knew this because he saw her in there. He admitted that he might have said on direct examination that he did not see her in there, but in fact he did see her. He admitted that he said nothing to his wife before he stabbed her; asked her for no explanation. She was doing nothing to him when he stabbed her. Did not know how long he stayed there and watched her before he stabbed her.
[478]*478He also swore he suspected that his wife was in Smith’s room when she asked for the key to the toilet. He said he heard her open the toilet door and go in, and that he sat there about twenty minutes and she did not come back, and he never had heard the door (toilet door) open again, so he just went there and looked and she was not in the toilet and the key was still in the door. He did not look-in Smith’s room then, but when he came back from his trip home, — some eighteen blocks, — he pushed open the door between Smith’s room and the toilet and looked in Smith’s room. He said he did not go into Smith’s room because he was scared; Smith was liable to have a pistol. He said he saw his wife in said room sitting on the side of the bed and Smith was in there with her. He did not call to her or tell her to come out, nor did he then knock on the door. His explanation of why he did not tell these things on direct examination was that he did not think about them, but he knew he did look into that room and his wife was within four or five feet of him when he did so.
Practically all of appellant’s testimony was contradicted. Smith was placed on the stand by the state and denied that the woman was in his room at any time, and said that he never met her except a few moments in the Riggs’ apartment that evening. He testified that appellant did come to his room and ask if his wife was in there and was assured by witness that she was not. He said he heard the screaming later in the Riggs’ apartment. He affirmed that the bed in his room was in such position that it could not be seen by a person in the toilet, even if the door was open. This was also affirmed by other witnesses. Riggs and his wife swore that appellant and his wife were at their apartment on the night in question; that deceased ate with them. Both said they sat around and talked, and that deceased bade them goodnight and went away. They did not know where she went. Appellant sat a while longer and left. He said nothing about his wife before going. Both testified that they then went to bed, and the next they knew was when they were awakened by the screaming of deceased in the front room of their apartment. They ran out and deceased was lying on the floor. Bertha Riggs denied the statement attributed to her by appellant. Other testimony showed the presence of a bloody axe and the character of the wounds on the body of deceased.
Bill of exception No. 1 complains of the refusal of a continuance. No process is attached to the application or shown in the bill. We are not impressed with the materiality of the absent testimony. The refusal was not erroneous.
Bill No. 2 brings forward exceptions to the court’s charge. The exception that same should have told the jury that appellant should be acquitted if he found his wife in such situation as to cause him to believe she had committed adultery, or was about to commit adultery, with Smith, [479]*479did not contain a correct statement of the law and is of no merit. The second round of said exceptions was that the charge omitted the affirmative defense of appellant, viz: that he had seen his wife in a compromising position with Smith under circumstances which reasonably led him to believe that they had committed adultery, or were about to do so; that said charge fails to apply and give appellant the benefit of such facts as applicable to malice aforethought. We confess ourselves not quite able to perceive the specific character of such an exception. Pinkerton v. State, 94 Texas Crim. Rep., 127, 249 S. W., 1066; Regittano v. State, 96 Texas Crim. Rep., 477, 257 S. W., 906; Morris v. State, 96 Texas Crim. Rep., 605, 258 S. W., 1065; McCauley v. State, 97 Texas Crim. Rep., 1, 259 S. W., 938. If the record presents any affirmative defense, same was not called to the attention of the court by such exception. No part of the charge given is pointed out as objectionable, nor was any special charge asked covering any theory or contention of the defense as not being fully set out in the charge given. Moore v. State, 96 Texas Crim. Rep., 121, 255 S. W., 988; Houseton v. State, 93 Texas Crim. Rep., 596, 255 S. W., 188; Prestidge v. State, 88 Texas Crim. Rep., 561, 288 S. W., 217.
The remaining exception is stated in the bill as follows: “The typewritten addition to paragraph five of the charge is error which is as follows: ‘Malice may arise in a very short time as within a twinkling of an eye,’ in that the game is unnecessary, confusing and improper and erroneous, and on the weight of the evidence.” That malice may arise in the shortest space of time has often been affirmed by our court. In the early case of Farrer v. State, 42 Texas 273, it is said: “But, as had been frequently held bjr this court, it does not follow, because the killing may be the result of the prompt and speedy execution of a hasty or immidiate resolution, that it may not have been done with express malice. The law has no scales to measure the time in which a sedate, deliberate mind may reach a formed design to kill, or do some serious bodily injury, which may probably result in death. When such design is once formed, the haste with which it is put in execution in no way affects or modifies the character of the act, or the degree of guilt thereby incurred.”
Again in Duebbe v. State, 1 Texas App., 166, this court said:- “If the defendant designed to kill the deceased, or to inflict upon him, by any unlawful means, any serious bodily injury which might probably end in his death, the law does not and cannot define any precise time as necessary for deliberation. The operation of the mind in deliberating may take in the shorest interval — even the moment before the act, as well as months before — and the deliberate intention of the mind is manifested by external circumstances.”
Gaitan v. State, 11 Texas App., 560, quotes with approval what is above set out as said in Farrer v. State, supra. In Sherar v. State, 30 [480]*480Texas App., 353, 17 S. W., 621, 623, Judge Davidson, for the court, says: “The law, however, does not prescribe any length of time in which malice may be engendered. If the mind be cool the malice may be formed in a moment of time, even as quick as the working of the intellect or the conception of thought. These matters must be relegated to the facts attendant upon the particular case.”
These cases and others deemed illustrative were handed down when express malice was a definite factor of murder in the first degree. In Garza v. State, 11 Texas App., 345, we held that a sudden killing, effected by means such as would likely cause death, would naturally give rise to the inference that it was upon express malice. In Campbell v. State, 15 Texas App., 506, appears a case where without proof of ill-feeling between the parties such facts were shown surrounding the killing as to make it appear one upon express malice, and it is said that if the manner and means of the homicide are such as to justify that conclusion, the fact that the killing is sudden, without proof of grudges, etc., would not prevent it being a killing upon express malice. Appellant cites us to no case supporting his contention, and by no analysis makes it appear likely that the giving of the charge last above quoted could have been of injury to him. We are confronted with our statute which forbids us to reverse for complains of the charge unless we believe the matter complained of calculated to injure the rights of the accused. See article 666, C. C. P. Again summarizing the record, we observe that no witness corroborates appellant as to what occurred at the time of or prior to the homicide. If we seek to ascertain his feeling and attitude at the time he killed his wife, from his own testimony, we must believe that his wife, in his presence, asked for the key to the toilet, separated from the room in which he sat by only a wall; that he heard her unlock the toilet door and go in; that after waiting twenty minutes, though he said he suspected her of being in Smith’s room, he made no move but left the premises, went eighteen blocks to his home and back, saw the key was still in the toilet door, went into said toilet, pushed open a door opening from this toilet into Smith’s room, saw his wife sitting on the side of the bed, turned around and went out into the alley and into the Riggs’ apartment, asked if his wife was back, went to Smith’s door, knocked, and asked Smith, who came to the door, if his wife was in there, was told she was not, demanded to see and was refused, said he wound find a man and ran to the corner of the block, came back, and heard Bertha Riggs, standing at the toilet door, say: “Come on out, he has gone,” saw his wife come out and go into the Riggs’ room, followed her and stabbed her with a knife and brained her with an axe. We are asked to reverse such a case upon our belief that he accused whose testimony we have just set out, was harmed by the giving to the jury of a statement that malice may arise in the shortest space of. time. We utterly fail to see [481]*481how this could have harmed him. If he was swept off his feet by passion, if bereft of power of self-control by observing his wife in the room with another man in a compromising position, why did he not hurl himself upon the guilty pair when he first saw them in Smith’s room? His' explanation was that he was afraid Smith had a pistol. This called for a little cool reasoning. He also gave as a further ground that the law forbade entry into another man’s house. More reasoning. After observing this, according to his own testimony, he went into Riggs’ apartment, made inquiries about his wife, knocked at the door, and conceived the idea of running a block and doubling back, and then when his wife appeared a few feet from him he did not undertake to act but followed her into the room where he killed her by the use of a knife and axe. The charge excepted to is not to be commended, and under different facts might be deemed injurious.
We have examined the other bills of exception and do not think the matters complained of reflect any abuse of the discretion confided in the trial court, or show any error that would call for a reversal.
The judgment will be affirmed.
Affirmed.