diligence to him than to an adult. See Pa- | shows that the railroad is fenced on both ducah & M. R. Co. v. Hoehl, 12 Bush, 49; Louisville & N. R. Co. v. Hunt, 11 Ky. L. Rep. 825, 13 S. W. 275; Louisville & N. R. Co. v. Webb, 99 Ky. 332, 35 S. W. 1117; McDermott v. Kentucky C. R. Co. 93 Ky. 408, 20 S. W. 380; 2 Shearm. & Redf. Neg. § 481a; Roseberry v. Newport News & M. Valley R. Co. 19 Ky. L. Rep. 194, 39 S. W. 407. sides, and is inclosed by iron cattle guards at the two crossings. Besides, the point where the accident occurred was in a deep cut. There was no claim that the company had ever authorized the use of its roadbed at this point as a footway, and the mere occasional passage of unauthorized pedestrians at this point with the knowledge of the company was not sufficient to convert a trespasser into a licensee, or to change the degree of care due by the railroad company. Upon the whole case we have reached the conclusion that there was no evidence of neg It is also complained that the trial court erred in refusing to permit the plaintiff to prove that the railroad at the point where deceased was killed had been, with the knowledge of the company, used as a foot-ligence on the part of those in charge of the way by pedestrians for many years, and that for this reason deceased could not be regarded as a trespasser. The testimony train, and that the trial court did not err TEXAS COURT OF CRIMINAL APPEALS. Enoch WHITE, Appt., v. STATE of Texas. (........Tex. Crim. App.........) 1. Submission to the jury of the issue of murder in the first degree is not reversible error where accused is found guilty of murder in the second degree, thereby acquitting him of the higher charge. 2. That at the time one kills another he is laboring under such a passion as deprives him of the power of forming the intent with deliberate mind NOTE.-Homicide by unlawful act aimed at another than the one killed. I. The general rule, 660. II. When murder in the first degree, 662. III. When murder in the second or a lower degree, 663. IV. When manslaughter, 666. V. When justifiable or excusable, 667.! VI. Summary, 668. I. The general rule. The general rule is that one who kills another, mistaking him for a third person whom he intends to kill, is guilty or innocent of the offense charged, the same as if the fatal act had killed the person intended to be killed. Clarke v. State, 78 Ala. 474, 56 Am. Rep. 45; Tidwell v. State, 70 Ala. 33; Murphy v. State, 108 Ala. 10, 18 So. 557; Jackson v. State, 106 Aia. 12, 17 So. 333; State v. Dugan, Houst. Crim. Rep. (Del.) 563; State v. Brown (Del.) 53 Atl. 354; Brown v. State, 147 Ind. 28, 46 N. E. 34; State v. Williams (Iowa) 97 N. W. 992; Jennings v. Com. 13 Ky. L. Rep. 79, 16 S. W. 348; State v. Renfrow, 111 Mo. 589, 20 S. W. 299; McGehee v. State, 62 Miss. 772, 52 Am. Rep. 209; State v. Johnson, 7 Or. 210; Wareham v. State, 25 Ohio St. 601; Com. v. Breyessee, 160 Pa. 451, 40 Am. St. Rep. 729, 28 Atl. 824; State v. Smith, 2 Strobh. L. 77, 47 Am. Dec. 589; Wright v. State, 44 Tex. does not reduce the crime to manslaughter, if the passion is caused by another person, and the killing of deceased is intentional, and not by mistake, under a statute defining manslaughter as homicide committed under the immediate influence of sudden passion arising from adequate cause, and providing that the act must be directly caused by passion arising out of a provocation, and that a provocation given by some other person than the one killed is not sufficient. 3. A killing is not reduced to manslaughter, where a person, after having been knocked down and having started to leave the room, turned and fired 645; Thornton v. State (Tex. Crim. App.) 65 S. W. 1105. And one will be held guilty of murder or manslaughter who, in the attempt to kill one person, by mistake kills a third person, although there was no intent or design to kill such third person. Butler v. People, 125 Ill. 641, 1 L. R. A. 211, 8 Am. St. Rep. 423, 18 N. E. 338; Rex v. Plummer, J. Kelyng, 109, 12 Mod. 627. Where a person is shot under the mistaken supposition that he is a different person, the intention of the perpetrator being to hit the person at whom his shot is directed, the intent is transferred to the person hit. Callahan v. State, 21 Ohio St. 306; State v. Renfrow, 111 Mo. 589, 20 S. W. 299; State v. Gilmore, 95 Mo. 554, 8 S. W. 359, 912; State v. Clark, 147 Mo. 20, 47 S. W. 886; Clark v. State, 19 Tex. App. 495. And where a shot discharged at one person hits another who at the time is known to be in such a position of proximity that his injury may be reasonably apprehended as a probable consequence of the act, the person discharging the shot will be deemed to hold an intent embracing the victim; and the principle is the same whether one or many are imperiled. Callahan v. State, 21 Ohio St. 306. A shot fired at one person with intent to wound or kill carries with it the ingredient of malice, whoever may be the victim. State v. Brown (Del.) 53 Atl. 354; State v. Clark, 147 back towards the spot where his assailant stood, but which had been vacated by him and was occupied by another, if at the time the shot was fired the accused recognized that the person at whom he aimed was not his assailant. 4. A charge in a homicide case is not subject to the criticism that it makes a conjunction or combination of circumstances essential to the reduction of the grade of the crime to manslaughter, where the facts stated are merely those relied on for that purpose. On Petition for Rehearing. APPEAL by defendant from a judgment of the District Court for Dallas County convicting him of murder in the second degree. Affirmed. The facts are stated in the opinion. Messrs. Thomas, Spellman, & Richardson and Robert B. Seay for appellant. Mr. Robert A. John for the State. Davidson, P. J., delivered the opinion of the court: Appellant was convicted of murder in the 5. That the death of deceased was not second degree, and given ten years in the produced solely by the act of accused cannot be raised as a defense to a prosecution for murder for the first time on a petition for rehearing in the appellate court under the Texas Code of Criminal Procedure. (December 11, 1902.) Mo. 20, 47 S. W. 886; Smith v. Territory, 11 Okla. 656, 69 Pac. 803. So, if a person assaults, or attempts to kill, another, and in doing so kills a third person who interferes in the proper defense of the person attacked, he is guilty of the same degree of homicide he would have been guilty of had he killed the person assaulted. Thornton v. State (Tex. Crim. App.) 65 S. W. 1105. And if one person, while endeavoring to take the life of another with deliberate and premeditated malice, unintentionally gives a fatal blow to another, he will be just as guilty as if the blow had taken effect upon the person for whom it was intended; the purpose or intent constituting murder being an intent to kill another, and not to kill any particular person. Wareham v. State, 25 Ohio St. 601. If a blow be intentionally and voluntarily given with a deadly weapon, not in self-defense, or with other legal excuse, and the result be the death of a human being, even though not the person aimed at, this cannot be less than manslaughter in the first degree, and may be murder; the depraved heart or unlawful will with which the instrument of death is hurled at one accompanies and characterizes the fatal blow which falls on another by misadventure. Wills v. State, 74 Ala. 21. And a charge in an indictment for murder that it was done wilfully, deliberately, premeditatedly, and with malice aforethought is sustained by proof that it was committed with a mind imbued with those qualities, though the intent was to kill another. On account of such corrupt intent, the law will hold the defendant guilty of an intended killing, the same as though specially intended; and there is no variance between an indictment charging an intent to kill the deceased and proof showing an intent to kill another person. Territory v. Rowand, 8 Mont. 110, 19 Pac. 595. And where an indictment charges an intent to kill the person killed, and the evidence shows an intent to kill another, and the averment of the intent is material only because made descriptive of the offense by the indictment, the accused waives his right to object to the variance by not objecting to the evidence at the time it was offered. Ibid. Nor can a person who approaches another from behind and shoots him lessen his guilt, or change the degree of the crime, by the claim that he mistook the person shot for another, penitentiary. The charge of the court is criticised in the motion for new trial because the issue of murder in the first degree was submitted. This was not error. It is usually neces with whom he had been on unfriendly terms. Com. v. Eisenhower, 181 Pa. 470, 59 Am. St. Rep. 670, 37 Atl. 521. And the fact that a person shooting at another missed his mark and killed a third person does not affect the crime, or reduce it from the first degree to the second; and in a prosecution therefor no instruction should be given as to murder in the second degree. State v. Pollard, 139 Mo. 220, 40 S. W. 949. And the fact that a person supposed he was shooting at one man when he killed another does not reduce the offense from murder to manslaughter. Burchet v. Com. 8 Ky. L. Rep. 258, 1 S. W. 423; State v. Pollard, 139 Mo. 220, 40 S. W. 949. And the mistake would not reduce the crime so as to entitle the person shooting to bail within the meaning of Burns's Rev. Stat. (Ind.) 1894, § 1785, providing that murder is not bailable when proof is evident and the presumption strong. Brown v. State, 147 Ind. 28, 46 N. E. 34. So, if a person provokes a difficulty with another, and makes an unlawful assault upon him with a knife, a brother of the person so assaulted has the right to interfere in the necessary and proper defense of his brother against the unlawful assault, and if the assailant, while engaged in such unlawful assault, kills the brother attempting to defend the other person assaulted, he will be guilty of whatever degree of the homicide he would have been guilty of had he killed the latter. Thornton v. State (Tex. Crim. App.) 65 S. W. 1105. And if a slave kills a white person believing him to be a runaway slave, being justified by the attendant circumstances in the belief, the degree of the homicide, whether murder, voluntary manslaughter, or involuntary manslaughter, is the same as it would have been had the person killed been a runaway slave; but the punishment would be that prescribed for that degree of homicide perpetrated by a slave on a white person. Isham v. State, 38 Ala. 213. But where two persons make an assault upon a third, and the third party discharges his revolver at them, missing them but killing a bystander, who is in no manner connected with the difficulty, the two persons assaulting him cannot be held responsible for such killing: there being no rule of law which would hold them responsible for his acts, in the absence sary to charge on murder in the first de- | leading to a blow from Knight, which gree, to a complete exposition of the ele-knocked appellant to the floor causing pain ments of murder in the second degree. and bloodshed. The parties immediately Simmons v. State, 23 Tex. App. 653, 5 S. W. separated; appellant going out of the front 208. It may also be stated, in reply to door, and Knight the rear. The witnesses this proposition, that an acquittal was had disagree as to the time intervening between as to murder in the first degree. Where this difficulty in the house and the firing this is the result, unless the submission of of the fatal shots, but, as we understand a charge in regard to the higher phase of the record, no witness places Knight in the the homicide leads to injurious results in house at the time of the homicide. Apregard to the phase of the case upon which | pellant testified that he had lost his glasses, the conviction is obtained, it is not reversible error. This is not the case here. The evidence discloses that the homicide occurred, practically, under the following state of case: Appellant and Knight, in the house where the homicide occurred, engaged in an angry altercation of words, of anything to show action in concert with him, or in furtherance of a common design or purpose. Butler v. People, 125 Ill. 641, 1 L. R. A. 211, 8 Am. St. Rep. 423, 18 N. E. 338. And an assauit is always necessary to be charged when a battery occurs in the perpetration of a murder, and the indictment is not good unless both the assault and battery are alleged to have been made and done on the same person, though a different person was killed from the one intended. State v. Clark, 147 Mo. 20, 47 S. W. 886. But while shooting at a person with intent to kill him, and hitting another person by mistake, do not make the shooter guilty of shooting at the latter with intent to kill her, under 2 N. Y. Rev. Stat. § 665, providing that every person who shall be convicted of shooting at another with intent to kill, maim, ravish, or rob such other person shall be punished by imprisonment in the state prison not more than ten years, the person accused might be convicted, under an indictment for shooting at the person who was hit with intent to kill her, of another offense than that described in the statute, of the common-law offense of firing at one and killing another; and a charge in such a prosecution, in substance, that the prisoner could not be convicted of any offense, is too bread, and is properly refused. Hollywood v. People, 2 Abb. App. Dec. 376, 3 Keyes, 55. II. When murder in the first degree. The rule of common law was that, if a person shot at another with express malice and by accident or mistake killed a third person, the offense would constitute murder in the first degree. Musick v. State, 21 Tex. App. 69, 18 S. W. 95; Richards v. State, 35 Tex. Crim. Rep. 38, 30 S. W. 805; Clark v. State, 19 Tex. App. 495. And under nearly all the various statutory definitions of murder one who shoots intending to kill a particular person, but fails in that particular intent and kills another, is, nevertheless, guilty of murder in the first degree. State v. Payton, 90 Mo. 220, 2 S. W. 394; State v. Gilmore, 95 Mo. 554, 8 S. W. 359, 912; Golliher v. Com. 2 Duv. 163, 87 Am. Dec. 493; State v. Raymond, 11 Nev. 98; People v. Miles, 143 N. Y. 389, 38 N. E. 456; State v. McGonigle, 14 Wash. 594, 45 Pac. 20. In State v. McGonigle, 14 Wash. 594, 45 Pac. 20, supra, Bratton v. State, 10 Humph. 103, without which he was unable to distinctly identify one person from another at the distance from which the firing occurred. Appellant, after passing out of the house (at what time, as before stated, is uncertain, but some time after leaving the house), fired into the house through the and the Texas cases infra, III., holding that the killing in such case would not be murder in the first degree, were disapproved. And where a blow is given with intent to kill, aud death is caused, it is murder, though it falls on and kills a person other than the one intended. Com. v. Dougherty, 1 Browne (Pa.) Appx. XVIII. And one who, while engaged in a personal difficulty with another, fires upon him with a pistol, and, as the latter runs away, again fires at him, and misses him and kills a third person, who is near by, is guilty of murder, and not of involuntary manslaughter. Durham v. State, 70 Ga. 264. So, one who with malice aforethought, but without wilful, deliberate premeditation, assaults another with intent to do him great bodily harm, and while so engaged kills a third person, may be found guilty of murder in the first degree. State v. Raymond, 11 Nev. 98. And one who, while in the prosecution of a felonious intent, or while engaged in the commission of an unlawful act, which in its consequences naturally tends to destroy the life of a human being, kills a different person, may be found guilty of murder. Ibid. And where a soldier, while a superior acting in the line of his duty was attempting to arrest him for a grave breach of discipline, discharged his musket at the latter with intent to kill him, but missed him and killed a soldier standing near, the crime committed is murder. Winthrop's Digest of Opinions of Judge Advocate General, p. 341. So, one who shot at a person on horseback, and hit and killed another person by mistake, is guilty of murder, though he did not intend to kill the person on horseback, but only to do him serious bodily harm, and though he claimed to intend only to make the horse throw him; since the act was one indicating a wicked, ' which depraved, and malignant spirit from malice is implied. State v. Smith, 2 Strobh. L. 77, 47 Am. Dec. 589. And where a peace officer or policeman, in pursuit of a person fleeing from arrest for a mere misdemeanor, shoots at him with the deliberate intention of killing him or doing him some great bodily harm, but misses him and kills another person, his offense is the same as if he had shot and killed the fleeing offender, and will be murder, and not manslaughter. State v. O'Neil, Houst. Crim. Rep. (Del.) 468. manslaughter on the theory of mistaking the women for Knight. No exception was taken to this, and the charges in these respects, as given, are correct. door from which he had emerged. The first upon the condition of his mind at the time shot took effect in the left rear portion of he shot, as he supposed, at Knight, Willie Casey's head, killing her instantly. as he did, also, in the charge on Deceased, Walker (another woman), was sitting in a chair diagonally across and in front of Willie Casey. Upon the first report of the pistol she jumped up, and ap'pellant immediately fired upon her, and shot her through the stomach. No witness places Knight in the house at the time, and the testimony all shows that he was not there. He testified himself that he had reached another street, some distance away, at the time of the shooting. The court charged the jury with reference to murder in the second degree and manslaughter. In reference to murder in the second degree, the charge made appellant's guilt depend And the word "otherwise" in N. Y. Penal Code, 183, providing that the killing of another is murder in the first degree when committed by a person engaged in the commission of, or in an attempt to commit, a felony either upon or affecting the person killed or otherwise, relates, not only to felonies against property, but also to felonies upon or against a person other than the one killed; so that, if one shoots at another intending to wound or kill him, and by false aim kills a third person, it is murder in the first degree. People v. Miles, 143 N. Y. 383, 38 N. E. 456. Likewise, if one person prepares and places poison for another, and a third person finds and takes it, and death results, it is murder both in the principal and in accessories before the fact. State v. Fulkerson, 61 N. C. (Phill. L.) 233. And if one puts poison into a pot of wine with the intent to poison another, and sets it in a place where he supposes the other will come and drink it, and by accident a third person against whom he has no malice comes and drinks it, and is killed thereby, it is murder, for the law couples the effect with the intention and the end with the cause; and this is so though the deceased, thinking that there is sugar in the wine, stirs it with a knife, thus making the operation more forcible. Gore's Case, 9 Coke, 81 a, dictum. And a woman who mixed poison with medicine sent by an apothecary to her husband, which did not kill him, but afterwards killed the apothecary, who tasted it himself in order to vindicate his reputation, is guilty of the murder of the apothecary, though the operation of the poison was made more forcible by the action of the apothecary in stirring and mingling the mixture with his knife before taking. Ibid. So, where one was engaged with others in unlawfully removing property when officers of justice interfered, and one of them discharged a fusee against one of the King's officers, that came to resist him in the prosecution of that design, and by accident killed one of his own accomplices, it is murder. Rex v. Plummer, J. Kelyng, 109, 12 Mod. 627. And suicide is an unlawful act in the eye of the law, and if a man with a deadly weapon undertakes to take his own life he is doing an unlawful act, and if, in the commission, or attempted commission, of that act he takes the life of an innocent bystander, though Under the state's case above given, the court further charged the jury: "If you believe from the evidence, beyond a reasonable doubt, that defendant did shoot and kill said Sallie Walker, not by mistake, but intentionally, but that at the time of doing so he was laboring under such a passion as deprived him of the power, at the time he formed that intent to kill her, to do so with a considerate and deliberate mind, then he would be guilty of murder in the unintentionally, it is murder. State v. Levelle, 34 S. C. 120, 27 Am. St. Rep. 799, 13 S. E. 319. Where one person kills another intending to kill a third person, however, it is necessary in order to constitute the crime of murder in the first degree, to show that the accused intended to kill such third person, and that such third person was, or might be supposed to be, at or near the spot at about the time of the fatal deed. Reg. v. Cleary, 2 Fost. & F. 850. III. When murder in the second or a lower degree. If the killing of a party intended to be killed would, under all the circumstances, have been reduced by such circumstances to murder in the second or other lower degree, then the un intentional and accidental killing of a by stander, resulting from the act designed to take effect upon the intended victim, would be likewise reduced to the same grade of offense, as would have been produced by the death of the person intended to be killed. Pinder v. State, 27 Fla. 370, 26 Am. St. Rep. 75, 8 So. 837; Ferrell v. State, 43 Tex. 503. And where a father accidentally shot and killed his child, in attempting to shoot a boarder of whom he was jealous on account of his wife, and it appears that he did not shoot at sight, but only after a quarrel, the child was not killed, as a matter of law, in the attempt to take the life of another under circumstances making such killing murder in the first degree; it might have been murder in the second degree, and the degree of the offense is one for the jury under appropriate instructions. People v. Gordon, 100 Mich. 518, 59 N. W. 322. Under the Tennessee and Texas rule requir ing express malice to constitute murder in the first degree, murder by killing one person by an act aimed at another is usually regarded as murder in the second degree, though there was an intent to kill the person at whom the act was aimed, and the act was one which would amount to murder in the first degree in most of the states. Thus, to constitute murder in the first degree under Tenn. act 1829, chap. 23, § 3, declaring that all murder which shall be perpetrated by means of poison, lying in wait, or any other kind of wilful, deliberate, malicious, and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpe fore the court was correct in giving the second degree." This charge is correct. If the jury should ascertain from the facts that appellant shot Sallie Walker, not intending to shoot Knight, or the individual manslaughter,-in substance that, if the he supposed to be Knight, then the question | jury believed that appellant was struck and of manslaughter, was eliminated. In other words, in order for him to have been guilty of manslaughter, his mind should have been laboring under the impression that he was shooting at Knight, and not at the woman he killed, for, if he shot and killed her, how ever much excited his mind may have been by adequate cause brought about by Knight, it would be murder in the second degrec. She had not produced adequate cause, and had not been the occasion of its production, or sudden passion which would have rendered his mind incapable of cool reflection. The statute settles this question.* There *The sections of the statute which are material to the understanding of the above case are as follows: Art. 605. "Every person with a sound memory and discretion, who shall unlawfully kill any reasonable creature in being within this state, with malice aforethought, either express or implied, shall be deemed guilty of murder. Murder is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide." Art. 606. "All murder committed by poison, starving, torture, or with express malice, or committed in the perpetration, or in the attempt at the perpetration, of arson, rape, robbery, or burglary, is murder in the first degree, and all murder not of the first degree is murder of the second degree." Art. 593. "Manslaughter is voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified nor excused by law." Art. 594. "By the expression 'under the immediate influence of sudden passion' is meant "1. That the provocation must arise at the time of the commission of the offense; and that the passion is not the result of a former provocation. trate, any rape, arson, burglary, or larceny, shall be deemed murder in the first degree, there must exist in the mind of the person who slays another a specific intention to take the life of the person slain; and if a person, with premeditated intent to slay another, by mistake slays a different person, it is not murder in the first degree. Bratton v. State, 10 Humph. 103. So, under Texas Code, to constitute murder in the first degree, or rather a murder by express malice, it must be accompanied by malice directed toward the particular individual, and if another than the one against whom such malice is conceived and entertained be the mistaken victim of such malice, the crime is murder in the second degree. Musick v. State, 21 Tex. App. 69, 18 S. W. 95. And one who shoots at one person and by mistake hits and kills another is guilty of murder in the second degree, and not in the first knocked down by Knight, and that such blow or blows produced pain or bloodshed, and that at the time he was using eyeglasses, and that said glasses were removed from his eyes, and that without such glasses his sight was impaired, and that, when he arose to his feet, blood was running from the wounds produced, and he started to, and did, leave the house, and go to the front door, and that when he reached that point, or thereabouts, he turned and fired his pistol, with the intent and believing that he was shooting at Knight, and that, when he left the room in which he was knocked down, "2. 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 arising from some other provocation. or a provocation given by some person other than the party killed. "3. The passion intended is either of the emotions of the mind, known as anger, rage, sudden resentment, or terror, rendering it incapable of cool reflection." "1. An assault and battery by the deceased, causing pain or bloodshed. "2. A serious personal conflict, in which great injury is inflicted by the person killed, by means of weapons, or other instruments of violence, or by means of great superiority of personal strength, although the person guilty of the homicide were the aggressor, provided such aggression was not made with intent to bring on a conflict and for the purpose of killing. "3. Adultery of the person killed with the wife of the person guilty of the homicide, provided the killing occur as soon as the fact of an illicit connection is discovered. "4. Insulting words or conduct of the person killed towards a female relation of the party guilty of the homicide." degree, since the killing is not with express malice, or in any attempt at arson, rape, robbery, or burglary, or by poison, starving, or torture. Bean v. Mathieu, 33 Tex. 591; Honeycutt v. State, 42 Tex. Crim. Rep. 129, 37 S. W. S06; Halbert v. State, 3 Tex. App. 656; Taylor v. State, 3 Tex. App. 387; Clark v. State, 19 Tex. App. 495; McCoy v. State, 25 Tex. 33, 78 Am. Dec. 520; Angell v. State, 36 Tex. 542, 14 Am. Rep. 380; Ferrell v. State, 43 Tex. 503; Breedlove v. State, 26 Tex. App. 445, 9 S. W. 768; Lankster v. State, 41 Tex. Crim. Rep. 603, 56 S. W. 65; WHITE V. STATE, And an instruction that such a killing is murder in the first degree is erroneous; but the accused cannot be heard to complain of the error, where he was not convicted of murder in the first degree. Taylor v. State, 3 Tex. App. 387. When the intention and the act resulting from it are precisely the same, whether the |