The appellant was convicted of the murder of Herrick D. Smith, and sentenced to the penitentiary for life.

The facts of this case are briefly and substantially as follows: The appellant and deceased were comparatively strangers in the country; they had been traveling companions and friends; they came to San Antonio together, put up at the same hotel, and had roomed and slept together. On the day, and but a short time before the deceased was killed, they, in company with others, had been engaged in a social game of cards, and about fifteen minutes before the deceased was shot, he and the appellant were walking, arm-in-arm, up and down in front of their room, apparently engaged in friendly and pleasant chat; they entered their room together, and in a short time the deceased cried for help; a person near by ran into the room and found deceased holding appellant on a bed, and holding his hands pinioned to the bed. The appellant was lying on his back, and *343was holding a pistol in one hand, and was bleeding freely from the month. The deceased was a large and powerful man, and appellant was then weak and in feeble health. The person who entered the room in answer to the call for help, took the pistol from the hand of the appellant and carried it out of the room, and, as he was leaving, the deceased released the appellant, who rose from the bed, making use of a threatening epithet. The alarm was given, and persons started to the room, and, as they opened the door, the appellant shot, and deceased fell mortally wounded. The person who heard the first alarm testified that not more than one minute transpired between .the first cry and the fatal shot.

Immediately preceding the shot, some words passed between the deceased and appellant not distinctly understood by the witness. The appellant had received an injury in the mouth, and one tooth had been knocked out. The homicide was promptly confessed by appellant, who was arrested by the sheriff in the room, and conveyed to jail. And on the trial, the material questions to be determined, were the character of the offense or degree of crime, and the punishment which under the law and the facts of the case should be imposed. These questions were for the jury to determine, under proper rulings and instructions of the court as to the law which should govern the case, and we would be disinclined to interfere with the determination of the jury, unless we were of the opinion that an error of law had been committed which might have led to an erroneous verdict.

Counsel for the appellant claim in the assignment of errors, that there were many errors in the rulings of the court on the trial of the case, and in the instructions to the jury, which should cause a reversal of the judgment. And prominently among the assigned errors it is claimed that the court erred in the instructions given to the jury, and in the refusal to give the instructions asked by the counsel for the defense. We are unable to discover any material error in the able instructions given, and we consider them generally as correct propositions of law, *344and therefore the chief inquiry to he made, is, were the instructions wholly applicable to the facts of the case, and were they the only instructions which should have been given to the jury? They are a clear exposition of the law relating to murder in the first degree, to express and implied malice, and clearly instructed the jury in relation to acts instigated by a sedate, deliberate mind, and formed design. But does the record in this case disclose the fact that the appellant acted with malice aforethought, or with a sedate mind and formed design, or does it show that the fatal deed might have heen committed under the immediate influence of sudden passion ? These inquiries should he determined by a jury under proper instructions, and the jury should have heen distinctly instructed in the law as to every degree of homicide to which the facts of the case could by any possibility have been properly applied.

Many facts in this case may be considered as common alike to murder in the first and second degrees, and to manslaughter, and we are unahle to perceive any good reason why the jury should not have been instructed in this case as clearly in regard to manslaughter and murder in the second degree, as they were in relation to murder in the first degree. And without indicating any opinion in regard to, the degree of crime proven, yet we are of the opinion that there was error in the charge of the court in not properly defining the distinction between murder in the first and second degree, and manslaughter.

The question here raised was ably and clearly decided in Maria v. The State, 28 Texas, 710, and in Ake v. The State, 30 Texas, 467, and need not he further considered now.

We therefore consider that the court erred in refusing to give the first, fourth, and fifth instructions asked by the defendant. The other errors assigned need not now be noticed, as on a new trial they may not again arise. We think the court should have granted a new trial, and for this cause the judgment is reversed, and the cause remanded.

Reversed and remanded.