
    THOMAS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    Rehearing Denied Oct. 22, 1913.)
    1. Ceiminal Law (§ 1099*) — Appeal— Statement of Facts — Time of Filing.
    Where court adjourned on January 4th, after judgment of conviction, a statement of facts not filed until April 14th was filed too late, and cannot be considered on appeal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Homicide (§ 308)—Instructions—Second Degree Murder.
    An instruction on second degree murder, that, if the jury believed beyond a reasonable doubt that accused, “in a sudden transport of passion,” roused without adequate cause, and mot in self-deibnse, cut and killed decedent, they should convict, was not erroneous, on the ground that the quoted phrase required accused to .be laboring under a greater mental strain than the law required.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.]
    3. Criminal Law (§ 1122)—Appeai^-State-ment op Facts—Effect of Absence.
    In the absence of a statement of facts, the Court of Criminal Appeals cannot determine whether an instruction on second degree murder was erroneous, or even determine whether second degree murder was in the case under the evidence.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    4. Criminal Law (§ 1144) — Review — Instructions— Self-Defense.
    It cannot be said that an instruction on self-defense, which charged that the jury might consider the relative strength of the parties and the accused’s knowledge of the character and ■disposition, of the party about to attack him which reasonably produced a fear of death, etc., was erroneous, in the absence of a statement of facts, since the evidence might have made such' a charge proper.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig-. § 1144.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Ben Thomas was convicted of first degree murder, and he appeals.
    Affirmed.
    J. L. Cobb, of Sherman, and A. S. Baskett, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of murder in the first degree, and the death penalty assessed. This is the second appeal. On the former appeal (63 Tex. Cr. R. 98, 138 S. W. 1018) a judgment was reversed, wherein the jury had assessed a lifetime imprisonment for murder in the first degree.

This record is in such condition that under the decisions qf this court the questions presented for revision cannot be intelligently reviewed, for the reason that the statement of facts was filed at so late a date that same cannot be considered. The court adjourned on the 4th day of January, 1913; the statement of facts was filed on the 14th day of April, same year. Under the decisions and the law as construed in many cases the statement of facts was filed too late. Without the statement of facts, the questions cannot be reviewed.

It is contended that the charge on murder in the second degree is not sufficient. After giving the usual definitions of malice, malice aforethought and implied malice, which is characterized by want of evidence to show express malice on one side, and extenuation, mitigation, or justification on the other, the court applies the law as follows : “If you believe from the evidence beyond a reasonable doubt that the defendant, with a knife, which was then and there a deadly weapon, or instrument reasonably calculated and likely to produce death by the mode qnd manner of its' use, in a sudden transport of passion, aroused without adequate cause, and not in defense of himself against an unlawful attack reasonably producing a rational fear or expectation of death or serious bodily injury, with the intent to kill, did cut and stab with said knife and thereby kill M. P. Crane, as charged in the indictment, you will find him guilty of murder in the second degree,” etc. It is urged that the expression “in a sudden transport of passion” is objectionable, and required the defendant to be laboring under greater mental strain than authorized by the law. In the Kannamacher Case, 51 Tex. Cr. R. 124, 101 S. W. 238, and some other cases, this was held to be an erroneous limitation; but in Water’s Case, 54 Tex. Cr. R. 322, 114 S. W. 628, Puryear’s Case, 56 Tex. Cr. R. 235, 118 S. W. 1042, Clark’s Case, 51 Tex. Cr. R. 519, 102 S. W. 1136, and Jay’s Case, 56 Tex. Cr. R. 111, 120 S. W. 449, it was held not to be error.

The second objection was: The charge does not expressly require that the killing be either unlawful or upon implied malice, 'or upon malice at all. This charge, applying the law to the facts, does not contain either the word “unlawful” or the expression “upon malice,” or “malice aforethought,” or “implied malice”; still, under the decisions, this charge seems to be sufficient, in that, with the remaining portion of the quoted charge, all the elements of murder in the second degree are charged. This seems to be borne out by Puryear v. State, 56 Tex. Cr. R. 231, at page 235, 118 S. W. 1042, and Davis v. State, 57 Tex. Cr. R. 545, 124 S. W. 104. In the recent case of Roberts v. State, 156 S. W. 651, a charge on murder in the second degree was held vicious, following Miles v. State, 18 Tex. App. 156. The charge, however, in that ease was different from the charge here given. In that case the court charged the jury that malice will be implied from an unlawful killing, and then followed that charge in applying the law directly to the facts, omitting these limitations that are set out in the charge here given, to wit, not under passion aroused by adequate cause, not in defense of himself against an unlawful attack reasonably producing a fear or expectation of death or serious bodily injury. In the charge in the Roberts Case, supra, applying the law to the facts, there was no limitation on murder in the second degree, so far as manslaughter was concerned, and the two charges there taken together, first, where the court instructed the jury that malice will be implied from an unlawful hilling, and in the second application, omitting manslaughter from it, that charge was held to be error. Under the authorities cited it would seem this charge is not of sufficient erroneous importance to require a reversal of the judgment, especially in the absence of a statement of facts. Without the statement of facts before us, we are unable to say that murder in the second degree was even in the case, and any charge upon it may have been beneficial to appellant.

The charge on self-defense is also attached, inasmuch as the jury was instructed that they might look to the relative strength of the parties and of defendant’s knowledge of the character and disposition of the party making or about to make an attack which reasonably produced a fear or expectation of death or serious bodily injury. In the absence of a statement- of facts, this charge may have been applicable to the evidence and directly called for by the facts; at least there is nothing, as the record is before us, to justify us in holding it reversible.

The judgment is affirmed.  