es it from murder in the second degree or any other homicide, is the existence of a settled purpose and fixed design on the part of the assailant that the act of assault should result in the death of the party assaulted; that death being the end aimed at, the object sought for and wished. The distinctive characteristic of murder in the first degree is premeditation. When the act of killing is not done in the commission or attempt to commit some felony nor by poison, or lying in wait, the killing must be done willfully, deliberately, maliciously, and with premeditation. Turner v. State, 108 S. W. 1139, 1142, 119 Tenn. 663, 15 L. R. A. (N. S.) 988, 123 Am. St. Rep. 758, 14 Ann. Cas. 990 (quoting Dale v. State, 10 Yerg. [18 Tenn.] 551; Swan v. State, 4 Humph. [23 Tenn.] 136; Lewis v. State, 3 Head [40 Tenn.] 148). ing." Held that, if the instructions stood alone, the latter part of the paragraph might be erroneous, but as it was followed by an instruction defining malice as being that which the law infers from certain acts, however suddenly done, as when the fact of an unlawful killing is established and the facts do not establish malice beyond a reasonable doubt, though they tend to excuse or justify the act, then the law implies malice, and the murder is murder of the second degree, and also that if the killing is unlawful and done with implied malice aforethought, it would be murder in the second degree, the instructions taken together were correct. Eggleston v. State (Tex.) 128 S. W. 1105, 1109. The next lower grade of culpable homicide than "murder in the first degree" is "murder in the second degree." Malice is A willful, deliberate, and premeditated also a necessary ingredient of the offense killing, or a killing done in the perpetration, of murder in the second degree. The disor attempted perpetration, of robbery, is tinguishing feature, however, so far as the "murder in the first degree." Otherwise a element of malice is concerned, is that in killing is "murder in the second degree," murder in the first degree malice must be where accused unlawfully and with malice proved to the satisfaction of the jury beaforethought killed decedent, and in deter-yond a reasonable doubt as an existing fact, mining the degree any evidence of the mental status of accused is proper. State v. Johnny, 87 Pac. 3, 8, 29 Nev. 203. An unlawful killing, done purposely and with deliberate and premeditated malice, is "murder in the first degree," and it matters not how short the time may be between the time of the formation of the purpose to kill and its execution, if the person committing the crime has deliberated upon it. "Murder in the second degree" consists in an unlawful killing done purposely and maliciously, but without deliberation and premeditation. Hamblin v. State, 115 N. W. 850, 853, 81 Neb. 148, 16 Ann. Cas. 569. The only essential difference between "murder in the first degree" and "murder in the second degree" is that the former is committed after deliberation and premeditation, which elements do not inhere in the lower grade of the crime, but all the elements of murder in the second degree are included in the statutory definition of murder in the first degree. To render one who is not present and does not aid or assist in a murder guilty thereof, by reason of a former conspiracy with the slayer, it must appear that the murder was within the contemplation of the conspiracy, or was the natural and probable outcome thereof. State v. Keleher, 87 Pac. 738, 739, 74 Kan. 631. In a prosecution for murder, the court charged that "malice is also necessary to murder in the first degree. The distinguishing feature, so far as malice is concerned, is that, in murder of the first degree, malice must be proven to your satisfaction beyond a reasonable doubt as an existing fact, while in murder of the second degree malice will be implied from the fact of an unlawful kill while in murder in the second degree malice will be implied from the fact of an unlawful killing. Implied malice is that which the law infers from or imputes to certain acts, however suddenly done. Thus, when the fact of an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, nor tend to mitigate, excuse, or justify the act, then the law implies malice, and the murder is in the second degree, and the law does not further define murder in the second degree than if the killing is shown to be unlawful, and there is nothing in evidence on the one hand showing express malice, and, on the other hand, there is nothing that will reduce the killing below the grade of murder, then the law implies malice, and the homicide is murder in the second degree. Dobbs v. State, 113 S. W. 923, 927, 54 Tex. Cr. R. 550. MURDER IN SECOND DEGREE As felonious homicide, see Felonious All murder not of the first degree is "murder of the second degree." Waters v. State, 114 S. W. 628, 632, 54 Tex. Cr. R. 322. By Pen. Code, § 352, "murder of the second degree" is all murder which does not amount to murder of the first degree. State v. Hliboka, 78 Pac. 965, 966, 31 Mont. 455, 3 Ann. Cas. 934. "Murder of the second degree" is all murder not murder in the first degree, as defined by Rev. St. 1887, § 6562. State v. Phinney, 89 Pac. 634, 13 Idaho, 307, 12 L. R. A. (N. S.) 935, 12 Ann. Cas. 1079. To render one guilty of "murder in the second degree," he must have inflicted an act of violence on decedent which produced death, with the intention to kill decedent or to do an act of violence from which ordinarily, in the usual course of events, death or great bodily harm might result. Fowler v. State, 49 South. 788, 789, 790, 161 Ala. 1. "The law requires that, before a homicide can be 'murder in the second degree,' it must be unlawfully done, and upon malice aforethought." Thomas v. State, 74 S. W. 36, 38, 45 Tex. Cr. R. 111. Where one person unlawfully kills another with implied malice, the crime is "murder in the second degree." State v. Short (Del.) 82 Atl. 239, 241, 2 Boyce, 491. Killing with implied malice constitutes "murder in the second degree"; that is, where the malice is not express, as in murder in the first degree, but is an inference or conclusion of law from facts proved, where there is no deliberate mind and formed design to take life, but where the killing is done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter. State v. Brooks (Del.) 84 Atl. 225, 227; Same v. Brelawski (Del.) 84 Atl. 950, 952; Same v. De Paolo (Del.) 84 Atl. 213, 214. "Murder in the second degree" is constituted by the absence of express malice upon one side and extenuating circumstances or self-defense or adequate cause upon the other. Wheeler v. State, 121 S. W. 166, 167, 56 Tex. Cr. R. 547. "Murder in the second degree" consists design to take life, and without provocation of the killing of another without a formed to reduce the offense to manslaughter, and under the influence of a wicked or depraved heart, or with cruel and wicked indifference to human life. State v. Cephus (Del.) 67 Atl. 150, 151, 6 Pennewill, 160. Murder in the second degree is a killing with implied malice; that is, without design or premeditation, but under the influence of a depraved heart and with a cruel and wicked indifference to human life. State v. Uzzo (Del.) 65 Atl. 775-777, 6 Pennewill, 212. Murder of the second degree is where there is no sedate, deliberate mind and formed design to take life, but when the circumstances show that the homicide was committed under the influence of a wicked and depraved heart, and with a cruel and reckless indifference to human life. State v. Harmon (Del.) 60 Atl. 866-868, 4 Pennewill, 580. Where the killing with a deadly weapon was established, or admitted, and the plea ing of a human being without a sedate, delib"Murder in the second degree" is the killwas self-defense, the two presumptions that the killing was unlawful and that it was done erate purpose and formed design to take life, with malice arose, and, where accused merely out justification or excuse, and without provbut one which is committed suddenly, withrebutted the presumption of malice, the pre-ocation sufficient to reduce the crime to sumption that the killing was unlawful stood, manslaughter. State v. Mills (Del.) 69 Atl. justifying a conviction of "manslaughter," 841, 842, 6 Pennewill, 497. which is an unlawful killing, which becomes "murder in the second degree" when it has the added element of malice. State v. Fowler, 66 S. E. 567, 151 N. C. 731. Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation. Miller v. State, 40 South. 47, 48, 145 Ala. 677. "Murder in the second degree" is the unlawful killing of a human being with malice aforethought, but without deliberation, premeditation, or preconcerted design to kill. State v. Bradley, 24 Atl. 1053, 1055, 64 Vt. 466. An instruction that "murder in the second degree" is the killing of a human being, "willfully, premeditatedly, and with malice aforethought," is correct. State v. Myers, 121 S. W. 131, 135, 221 Mo. 598. "Murder in the second degree" is the killing of a human being willfully, premeditatedly, and with malice aforethought, but without deliberation. State v. West, 100 S. W. 478, 481, 202 Mo. 128. A killing with malice aforethought, but without express malice is "murder in the second degree." McMeans v. State, 114 S. W. 837, 839, 55 Tex. Cr. R. 69. "Murder in the second degree" is where the killing is done with implied malice; that is, without justification or excuse or without provocation or sufficient provocation to reduce it to manslaughter. State v. Tilghman (Del.) 63 Atl. 772, 773. "Murder of the second degree" is where there is no deliberate mind and formed design to take life, but where the killing is malicious, and without justification or excuse, without to reduce the homicide to manslaughter. provocation, or without sufficient provocation State v. Adams (Del.) 65 Atl. 510, 511, 6 Pennewill, 178. "Murder of the second degree" is committed when the killing is done with implied malice, where there is no deliberate mind or formed design to take life or to perpetrate a crime punishable with death, but where the killing is without justification or excuse, and without sufficient provocation to reduce the offense to manslaughter. State v. Miele (Del.) 74 Atl. 8, 9, 1 Boyce, 33; Same v. Brown (Del.) 61 Atl. 1077, 1078, 5 Pennewill, 339; Same v. Johns (Del.) 65 Atl. 763, 764, 6 Pennewill, 174. "Murder of the second degree" occurs where the killing is done with implied malice; that is, where there is no deliberate mind or formed design to take life, but where the killing was done without justification or excuse, or without provocation to reduce the offense to manslaughter. State V. Reese (Del.) 79 Atl. 217, 220, 2 Boyce, 434; Same v. Powell (Del.) 61 Atl. 966, 971, 5 Pennewill, 24. "Murder of the second degree" is the killing with implied malice, inferred from the facts proved, where there is no deliberate mind or formed design to take life, but where the killing is done without justification or excuse, and without provocation sufficient to reduce the offense to manslaughter. State v. Russo (Del.) 77 Atl. 743, 746, 1 Boyce, 538; Same v. Roberts (Del.) 78 Atl. 305, 310, 2 Boyce, 140. "Murder of the second degree" is when the killing is done with implied malice, not with a deliberate or formed design, but without justification or excuse, and without provocation, or sufficient provocation to reduce the offense to manslaughter. State v. Primrose (Del.) 77 Atl. 717, 719, 2 Boyce, 164. "Murder in the second degree" is where there is no such deliberate mind and formed design to take life, but where, nevertheless, the killing is malicious and without justification or excuse, without any provocation, or without sufficient provocation to reduce the homicide to the grade of manslaughter. State v. Emory (Del.) 58 Atl. 1036, 1038, 5 Pennewill, 126. Where there is no deliberate mind or formed design to take life, or to perpetrate a capital crime, but where the killing is done without justification or excuse, and without provocation, or sufficient provocation to reduce the offense to manslaughter, it is "murder of the second degree." State v. Borrelli (Del.) 76 Atl. 605, 606, 1 Boyce, 349. "Murder in the second degree" is where the killing was done with implied malice; where there was no deliberate mind or formed design to take life or to perpetrate a crime punishable with death; but where the killing was done without justification or excuse and without provocation, or without sufficient provocation to reduce the offense to manslaughter. State v. Brown (Del.) 61 Atl. 1077, 1078, 5 Pennewill, 339. "Murder in the second degree" is the killing of a human being without a deliberately formed design to take life, or to perpetrate or attempt to perpetrate a crime punishable with death, but without justification, excuse, or sufficient provocation to reduce the homicide to manslaughter. State v. Collins (Del.) 62 Atl. 224, 226, 5 Pennewill, 263; Same v. Bell (Del.) 62 Atl. 147, 148, 5 Pennewill, 192. "Murder in the second degree" is proved where it is satisfactorily shown that the killing was done with a sedate, deliberate purpose and formed design to take life, or in perpetrating or attempting to perpetrate any -crime punishable with death, but is usually shown to have been done suddenly, without justification or excuse, and without provocation sufficient to reduce the homicide to manslaughter or in the committing or attempting to commit a noncapital felony or an act of violence from which malice is presumed. State v. Wilson (Del.) 62 Atl. 227, 230, 5 Pennewill, 77. "Murder in the second degree" is constituted by the absence of express malice on one side and extenuating circumstances or self-defense or adequate cause on the other; and where the one who killed another laid in wait for him and shot him, adequate cause and self-defense were not in the case, and the killing could not be lower than murder in the second degree. Wheeler v. State, 121 S. W. 166, 167, 56 Tex. Cr. R. 547. "Murder in the second degree" is defined in Comp. Laws 1897, § 1064, as "every murder which shall be perpetrated without a design to effect the death, by a person while engaged in the commission of a misdemeanor, or which shall be perpetrated in the heat of passion without design to effect death, but in a cruel and unusual manner or by means of a dangerous weapon, unless it is commit ted under such circumstances as constitute excusable homicide or which shall be perpetrated unnecessarily either while resisting an attempt by the person killed to commit any offense against person or property or after such attempt shall have failed." Territory v. Hendricks, 84 Pac. 523, 524, 13 N. M. 300. "Murder in the second degree" is: First, all murder which shall be perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor; or, second, all murder which shall be perpetrated in the heat of passion without design to effect death, but in a cruel and unusual manner, or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide; or, third, all murder which shall be perpetrated unnecessarily, either while resisting an attempt by the person killed to commit an offense against the person, or property, or after such attempt shall have failed. Comp. Laws 1897, § 1064. An instruction that premeditation and malice aforethought are not elements of the crime of murder in the second degree, and defining it as the kiling of a human being by the use of a dangerous weapon without premeditation and without malice aforethought, is erroneous. Territory v. Gutierez, 79 Pac. 716, 718, 13 N. M. 138. A killing in a combat which engenders hot blood is not "murder in the second degree," unless the elements of purpose and malice concur in the act. Osburn v. State, 73 N. E. 601, 604, 164 Ind. 262. To constitute "murder in the second degree" in Texas, the statute only requires that the kiling be done in a passion aroused without adequate cause. Redman v. State, 108 S. W. 365, 367, 52 Tex. Cr. R. 591. If a design to kill is formed in a mind excited by passion, or disturbed by any inadequate cause, and cooling time has not elapsed before the execution of the. design, the homicide is not greater than "murder in the second degree." Manning v. State, 85 S. W. 1149, 48 Tex. Cr. R. 55. "Murder in the second degree" is the wrongful killing of a human being with malice aforethought, but without deliberation. It is where the intent to kill is in a heat of passion, executed the instant it is conceived, or before there has been time for the passion to subside. State v. Robertson, 77 S. W. 528, 530, 178 Mo. 496. One who intentionally and premeditatedly kills another with a deadly weapon, but while smarting under the insult and passion aroused by vile epithets spoken of him in his presence and hearing by deceased, is guilty of "murder in the second degree." State v. Williams, 84 S. W. 924, 927, 186 Mo. 128 (citing State v. Wieners, 66 Mo. 13; State v. Ellis, 74 Mo. loc. cit. 218, 219; State v. Robinson, 73 Mo. 306; State v. McKenzie, 76 S. W. 1015, 177 Mo. 699). To reduce a murder from the first to the second degree, it is not necessary that the homicide should occur in a sudden transport of passion. A passion is not required to be sudden, nor is it necessary that there be a transport of passion, and if the mind of the slayer is not cool and deliberate when the intent is formed, but is laboring under any excitement or passion, this will reduce the homicide to the second degree. It is an undue limitation and restriction, calculated to cause a conviction of "murder in the first degree," for a charge on "murder in the second degree" to require the jury to believe that accused shot decedent in a sudden transport of passion. Kannmacher v. State, 101 S. W. 238, 242, 51 Tex. Cr. R. 118. S. W. 1111, 1112, 181 Mo. 192. Defendant, with another, went into a saloon of decedent, and there proposed to throw dice for the drinks, and invited decedent to throw and also to drink, both of which decedent refused to do, using at the time insulting language toward defendant. Thereupon, after drinking, defendant, with his companion, left the saloon. While walking away defendant suggested to his companion that decedent had it in for him (companion) as the reason why he had insulted defendant, to which his companion replied that decedent had nothing against him, but that he (defendant) was the man decedent was after. Defendant's companion then left him, and about 15 minutes later defendant returned to decedent's place with a pistol, and in a renewal of the difficulty shot decedent. Held that, if defendant's intent to kill was formed at the time of the first meeting, or after the conversation with his companion. and he then went for a pistol, and his mind was inflamed by the insulting language either at the time it was spoken or in the subsequent conversation with his companion, and cooling time had not elapsed before he returned and shot decedent, he was guilty of no greater offense than "murder in the second degree." Rice v. State, 103 S. W. 1156, 1168, 51 Tex. Cr. R. 255. Our statute declares murders committed by lying in wait, by poison, and in attempt to perpetrate certain felonies, and all other willful, deliberate, and premeditated murders, to be of the first degree, and all other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide, to be "murder in the second degree." Those murders committed in a heat of passion engendered, not by what was Though deceased brought on the difficulty by calling defendant names, and struck the first blow, yet, it having been with his hands, and he not having offered to strike him with anything else, and defendant hav-legal provocation at common law to reduce a ing from the first cut and slashed deceased with his knife, and continued it after deceased had fallen, mortally wounded, a conviction of "murder in the second degree" is justified. Hatchell v. State, 84 S. W. 234, 237, 47 Tex. Cr. R. 380. Mere words or epithets, however opprobrious or insulting, cannot justify the killing of the person who uses them, but his killing by one while in a violent passion aroused by such language, though not deliberate, is "murder in the second degree," if done will fully, premeditatedly, and of malice aforethought. State v. Ballance, 106 S. W. 60, 64, 207 Mo. 607. homicide from murder to manslaughter, but by opprobrious epithets or other insults, sufficient to arouse the same heat of passion which would be caused by a technical, legal provocation, are of second degree. An instruc tion that, if deceased used words towards defendant which were a reasonable provocation for an assault by defendant on deceased, defendant is only guilty of manslaughter in the fourth degree was properly refused, since such provocation by mere words would only reduce the grade of the offense to murder in the second degree, where the party provoked used a deadly weapon with which he killed his opponent. State v. Gartrell, 71 S. W. 1045, 1053, 171 Mo. 489 (quoting and adopting | cused, acting with implied malice aforeState v. Kotovsky, 74 Mo. 247). The killing of a human being with malice aforethought, without premeditation or deliberation, is, generally speaking, “murder in the second degree." Hence an instruction that the intoxication of accused should be considered in determining the degree of the murder was improperly refused. State v. Williams, 97 N. W. 992, 995, 122 Iowa, 115. thought, set fire to the house, and by reason thereof decedent was burned and died therefrom, etc., accused was guilty of "murder in the second degree," etc., sufficiently defined arson and burglary. Jones v. State, 110 S. W. 741, 742, 53 Tex. Cr. R. 131, 126 Am. St. Rep. 776. In a prosecution for homicide, the court charged that, if a person by his own wrongthe life of another to prevent being killed ful act brings about the necessity of taking himself, he cannot claim that the killing is in self-defense, but the killing will be imputed to malice; that a person provoking a difficulty with another with the willful intention of "Murder in the second degree" is the wrongful killing of a human being with malice aforethought, but without deliberation. Where the court, on a trial for murder, had defined "premeditatedly" as "thought of beforehand," and "malice aforethought" as meaning that the killing was done with mal-killing the latter or of doing him serious bodice and premeditation, an instruction that, if ily harm is guilty of murder, though he may have done the killing suddenly and without "the defendant did unlawfully, premeditatedly, and of his malice aforethought, but with deliberation to save his own life, and if the out deliberation, as defined in these instruc-jury believed beyond a reasonable doubt that tions, kill the deceased," etc., to find him defendant by his acts or language, or both, guilty of "murder in the second degree," was provoked the difficulty with deceased, and cause deceased to attack defendant with a not objectionable in that it omitted to tell the gun, and defendant, pursuant to his original, jury that, to constitute that degree of mur- unlawful and willful intention to kill deceasder, the homicide must be committed "will-ed, shot and killed him to save his own life, fully" or "intentionally." State v. Marsh, 71 S. W. 1003, 1004, 171 Mo. 523. Any error in defining “murder in the second degree" as the felonious killing of a human being could not have misled the jury, where the court subsequently defined it as the felonious killing of a human being by one of sound memory and discretion with malice aforethought, which might be either express or implied, and such charge was afterwards repeated. State v. Tweed, 68 S. E. 139, 152 N. C. 843. Where, in a prosecution for murder, the court properly presented the issue of self-defense, and correctly defined murder in the second degree, and then charged the jury to find defendant guilty if he shot deceased with a gun, which was a deadly weapon, and that such shooting was not under the immediate influence of sudden passion, produced by an adequate cause, and was not in defense of himself against an unlawful attack, etc., the charge is not erroneous, as nowhere charging that the killing must be unlawful or that such killing was done on malice, since, to justify a conviction of murder in the second degree, facts must be found which would make the killing unlawful under circumstances which would imply malice. Pratt v. State, 127 S. W. 827, 829, 59 Tex. Cr. R. 167. An instruction, on a trial for murder alleged to have been committed in the perpetration of burglary by setting fire to the house burglarized and occupied by decedent, that if decedent occupied the house, and if accused broke and entered the same with the intent to fraudulently take corporeal personal property of value then and there in the house, and without the consent of decedent, and if ac the homicide would be "murder in the second degree." Held a correct charge on the issue of provoking a difficulty. Woodard v. State, 111 S. W. 941, 943, 54 Tex. Cr. R. 86. Where accused intentionally shot decedent with a pistol and killed him, and the state failed to show beyond a reasonable doubt that the killing was done with deliberation and premeditation, accused was guilty of “murder in the second degree." State v. Jones, 59 S. E. 353, 354, 145 N. C. 466. Where accused admitted that he killed decedent while holding the pistol so close to her body as to scorch her clothing, and he offered no excuse therefor except decedent's refusal to surrender a child of the parties, and that he fired to make her release the child, he was at least guilty of “murder in the second degree." State v. Thompson, 69 S. E. 254, 255, 153 N. C. 618. Defendant and decedent, brothers, had an altercation, in which a knife was used, and defendant was ordered from their mutual home, and he returned an hour later, secured his clothing and a gun, and in a renewal of the difficulty killed decedent. Held, that if the intention to kill was formed through passion, without adequate cause, and a sufficient time had not elapsed for his mind to cool to the extent of contemplating the consequences of his act, he was guilty of no greater offense than "murder in the second degree." Dixon v. State, 103 S. W. 399, 401, 51 Tex. Cr. R. 555. Accused admitted the shooting of decedent twice with a rifle, inflicting wounds either of which would produce death, and relied on self-defense. The killing took place |