¶1On Motion for Rehearing.
¶2On the 19th of December, 1930, the deceased, Mallié Nettles, was killed. The conviction of the appellant for the murder of Nettles was concluded on the 10th day of August, 1931. The statement of facts was signed on the 6th day of November, 1931. It is in question and answer form, and contains 283 pages of typewritten matter. In it are embraced colloquies between judge and counsel, rulings of the court on the evidence, and much matter that should have been eliminated in the preparation of a statement of facts if the law as prescribed by chapter 34, Acts of 42d Legislature, 1st Called Session, which became effective August 17, 1931 (Vernon’s Ann. Civ. St. arts. 2237-2239, and note, Vernon’s Ann. P. CL art. 760), had been followed. The act in question re-established the law governing the preparation of statements of facts as it was embraced in article 760, C. C. P. 1925, and article 2237, Revised Civil Statutes 1925, which practice had existed for many years previous to that time.% 'The authority of this court to consider the statement of facts in the present ease by reason of the statute first above mentioned is open to some question. However, to the best of our ability, we have endeavored to learn from the document the evidence that was received with the sanction of the trial court.
¶3In an extrajudicial confession the appellant admitted that he placed dynamite connected with a fuse in the kitchen stove in the home of the deceased. It appeared from other testimony that early in the morning of the 19th of December, 1930, the dynamite exploded and fatally wounded the deceased. There lived in the house at the time the wife of the appellant and her four children, the married daughter of the appellant’s wife, her husband and two children, and the deceased, Nettles.
¶4The appellant testified upon the witness stand, going into great detail touching the preparation that he made for the destruction of Nettles and the precaution taken by him to prevent the discovery of his identity as the perpetrator of the crime. As the motive for the crime, the appellant claimed that his wife and Nettles were living in adultery. At the time of the tragedy, the appellant’s wife and her younger children had been living in the home of the deceased for about a week. Her daughter Mrs. Cleveland and her family had resided there for several months. Touching the improper relations between the deceased and the appellant’s wife, the evidence is conflicting. The appellant’s claim that he had received information supporting his theory was quite meager and inconclusive and was combatted by his stepdaughter and other witnesses. The appellant and his wife had previously been separated, and after their separation in the present instance she removed to the Nettles’ home. The appellant had been to the Nettles’ home after the separation and had engaged in friendly conversation with Nettles, and assisted him in bringing water for use of Mrs. Zimmerman in washing clothes. Appellant was familiar with the household arrangement in the Nettles’ home.
¶5The only defense suggested is by virtue of the statute, article 1220, P. C. 1925, which exculpates a husband who slays his wife’s paramour when taken by the husband in adultery. It is not thought that there is evidence in the record calling for the application of this statute. At the time the deceased was killed, the appellant was at his home a quarter of a mile distant. The death of the deceased occurred while he was performing the innocent household duty of building a fire in the kitchen stove. The cause of his death was a trap set by the appellant, which might have been intended to destroy the life of Nettles by explosion and which might have taken place at a time when it would destroy or maim any one or more of the ten persons (six of them *331innocent children) who were present in the small dwelling house occupied by the deceased and the members of the appellant’s family.
¶6As indicated in the original opinion, the remarks of the court cannot be approved, but it is not in every case that remarks of a similar nature justified a reversal of the judgment of conviction. See Redwine v. State, 85 Tex. Cr. R. 437, 213 S. W. 636; Reed v. State, 74 Tex. Cr. R. 242, 168 S. W. 541. The charge of the court which was given in the present case accurately states the law applicable to the evidence before the jury. Even in a charge given to the jury in the specific case on trial, it is not lawful to reverse the judgment for a fault in the charge “unless the .error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” See article 666, C. C. P. 1925. The right of the Legislature to enact the statute last mentioned and the obligation of the courts to observe and apply it, has often been affirmed. See Davis v. State, 107 Tex. Cr. R. 389, 296 S. W. 605, and cases collated. No jury, in the discharge of its duty, would have been justified in rendering in the present ease any verdict other than one convicting the appellant of murder. The court instructed the jury that, if they had a reasonable doubt whether the appellant acted upon malice aforethought, there could be assessed against him no penalty greater than confinement in the penitentiary for five years. The jury found the appellant guilty of murder with malice aforethought and assessed the penalty at confinement in the penitentiary for nine years. Viewed in the light of the facts, it is thought that the verdict of the jury makes clear the duty of this court to give application to the statute mentioned above. Pew eases have come before this court in which the facts have more accurately cpme within the purview of that phase of the law which characterizes malice aforethought as an act done 'by one whose heart is devoid of social duty and fatally bent on mischief. In that respect, the facts call to mind the case of Banks v. State, 85 Tex. Cr. R. 167, 211 S. W. 217, 218, 5 A. L. R. 600, in which it is said: “The shame of the world recently has been the unwarranted killing of persons who were noncopibatants and who were doing nothing and were not capable of inflicting injury upon their slayers. Of kindred spirit is he who can shoot in the darkness into houses, crowds, or trains and recklessly send into eternity those whom he does not know and against whom he has no sort of reason for directing his malevolence.”
¶7In the instant case, the penalty assessed is merciful, and it is thought that it is the duty of this court to uphold it.
¶8The motion for rehearing is overruled.