"(5) `Express malice,' as herein used, is when a man with a cool and sedate mind, in pursuance of a formed design to kill another, or to inflict on him some serious bodily injury, which would probably end in depriving him of life, does, without legal justification, mitigation, or excuse, kill such person.
"(6) `Express malice,' as above defined, is never inferred or implied alone from the act done, or from the means used in doing it, but it must be proved, like any other fact in the case, by such evidence as may reasonably be sufficient to satisfy the jury of its existence, beyond a reasonable doubt, at the time of the commission of the unlawful act.
"(7) Malice is implied when it satisfactorily appears that a homicide was intentionally committed, and the facts show that it was neither with express malice, nor under circumstances justifying, mitigating, or excusing the act. In such a case, the law implies malice, and the offense is murder in the second degree.
"(8) Applying the foregoing definitions to the facts of this case, if you shall believe from all the evidence beyond a reasonable doubt that defendant Bernardino Gonzales, in Zapata county, Tex., on or about the 17th day of February, A. D. 1889, did kill said Alejandro Vidaurri, by shooting him with a pistol, in manner and under the circumstances alleged in the indictment, you will find him guilty of murder, and the degree of such murder.
"(9) And if from the evidence you find that said murder was committed with `express malice,' as defined in the fifth paragraph of this charge, you will find him guilty of murder in the first degree, and assess his punishment at death, or by confinement for life in the penitentiary. If, however, you have a reasonable doubt of such murder being of the first degree, you will acquit him of this degree of murder, and then further consider of the degree of such murder; and if from the evidence you believe, beyond a reasonable doubt, that said murder is of the second degree, as defined in the seventh paragraph of the foregoing charge, you will so find, and assess defendant's punishment at confinement in the penitentiary for any number of years, not less than five.
"You are further instructed that, in addition to his plea of not guilty, the defendant in this case interposes the plea of self-defense, and upon the issue, and as the law governing the same, you are now instructed:
"(1) Homicide is justifiable in the protection of the person from any unlawful and violent attack, and in such case all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the act of making such unlawful and violent attack, or while the person killed is doing some hostile act or making some hostile demonstration that would, viewed from the stand-point of the slayer, produce in his mind a fear or expectation of death, or of some serious bodily injury.
"(2) The person who is thus violently attacked, or against whom such hostile act or demonstration is made, is not bound to retreat to avoid the necessity of killing his assailant.
"(3) Applying the foregoing definitions to the facts of this case, upon the issue now submitted to you, you are charged that defendant would be justified in killing the deceased if it is shown to have been done to prevent the deceased from murdering or maiming him; or if it is shown that at the very time of the killing, or immediately preceding such killing, deceased had made, or was in the act of making, some hostile demonstration towards the defendant, such as would produce in his mind a reasonable fear or expectation of death or of some serious bodily injury; but in that case, to justify the killing, it must reasonably appear, from the acts or words coupled with the acts of the deceased, that he intended to murder, maim, or inflict some serious bodily injury upon the defendant, and the killing must have taken place while the deceased was in the act of committing such offense, or after some act done by him showing evidently an intention to commit such offense. Therefore, if you believe from the evidence that the defendant at the time of the homicide believed that his life was in danger, such fear being produced by hostile acts on the part of the deceased, and at the time he fired the fatal shot it reasonably appeared to him, from all the circumstances of the case, viewed from the defendant's stand-point alone, that the deceased was about to shoot him with a gun or a pistol, then the defendant would be justified, notwithstanding it may appear as a fact that defendant was in no danger at the time of the homicide, and, if you so believe, you will acquit him.
"(4) Again, if the jury shall find from the evidence that, prior to the homicide, the deceased had threatened the life of the defendant, such threats of themselves would afford no justification for the offense, unless it be shown that at the time of the killing deceased had done, or was in the act of doing, some act, or was making some demonstration, manifesting an intention then and there to execute or carry out such threats, or which was reasonably calculated, in view of all the evidence and circumstances of the case considered from defendant's stand-point, to produce, and did produce, in the mind of the defendant, the belief that deceased was about to execute such threats, and
in that event defendant would have the right to act upon such reasonable appearance of danger, notwithstanding such danger might not in fact have been real, and the killing under such circumstances would be justifiable.
"You are further instructed, as a part of the law of this case, and as a qualification of the foregoing charge on the law of self-defense, as follows:
"(1) If a person, by his own wrongful act, bring about the necessity of taking the life of another to prevent being himself killed, he cannot say or claim that such killing was in his own necessary defense, but the killing will be, in such case, imputed to malice by reason of the wrongful act which brought it about or malice from which it was done.
"(2) The law is that he who brings on an affray in which he intends to wreak his malice cannot avail himself of the shield of self-defense, though his own life be imperiled in the affray, and the slayer, if he provoked the contest, or produced the occasion, with the apparent intention of killing the deceased or of doing him some serious bodily harm, is guilty of murder, although he may have done the act of killing suddenly, and without deliberation, to save his own life. In such case the law allows no justification and no reduction of the grade of the homicide below that of murder.
"(3) If you believe, therefore, beyond a reasonable doubt, that defendant, by his own wrongful act, brought about the necessity of killing deceased, or provoked the difficulty with the apparent intention of taking the life of the deceased, intentionally, and with a view thereto, and that under such circumstances he shot and killed deceased, then defendant's plea of self-defense will not avail him, and the homicide would be murder in the first or second degree, according as the facts and circumstances may justify the jury in finding."
"(11) But if the defendant provoked the difficulty without any intention to kill or inflict serious bodily injury, and suddenly and without deliberation did the act of killing, under the immediate influence of sudden passion arising from adequate cause, as hereinafter explained to you, while the homicide would not be justifiable, it would be `manslaughter,' within the meaning of that term as now hereafter defined.
"(12) Homicide is the destruction of the life of one human being, by the act, agency, procurement, or culpable omission of another.
"(13) Manslaughter is voluntary homicide, committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified nor excused by law.
"(14) By the expression, `under the immediate influence of sudden passion,' is meant — First. That the provocation must arise at the time of the commission of the offense, and the passion engendered is not the result of a former and different provocation. Second. The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by passion from some other provocation. Third. The passion intended is either of the emotions of the mind known as anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection.
"(15) By the expression `adequate cause' is meant such as would commonly produce a degree of anger, rage, sudden resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection.
"(16) Angry and insulting words, coupled with sudden gestures, as if to draw a deadly weapon on the party of the person killed, would constitute adequate cause, in view of the case.
"(17) In order to reduce a voluntary homicide to grade of manslaughter, it is necessary not only that an adequate cause existed to produce the state of mind referred to in the foregoing charge, but also that such state of mind did actually exist at the very time...
