PREFDERGAST, Presiding Judge.
—Hpon a charge of murder appellant was convicted of murder in the second degree and his punish-
ment fixed at nineteen years confinement in the penitentiary.
The conviction occurred on April 11, 1913. On April 15th appellant filed his amended motion, in lieu of his original, for a new trial, the last ground of which is as follows: “Because the jury arrived at their verdict by lot, that is to say, the defendant is advised and believes and the facts are that the verdict of the jury was arrived at in this manner,
the twelve jurors placed on a sheet of paper the number of years he was in favor of confining the defendant in the penitentiary, then adding the several figures then divided the whole sum by twelve, thus arriving at the nineteen j^ears imprisonment for the defendant, the jurors having agreed in advance to abide by the result by such lot. The defendant asks the court to hear testimony as to how the jury arrived at their verdict, and that a new trial be granted.”
There appears in the record what would be appellant’s bill of exception Ho. 3 on this point if it had been allowed by the court. But the court refused to approve it and stated that he did so for the reason that a bill involving the same matter was presented during the term of said court. Then there appears in the record what must be this bill referred to by the court. The court qualified that bill by stating: “Ho issue as to the misconduct of the jury having been submitted to the court, the jury was not permitted to be sworn and impeach its verdict which appeared not partial or- unfair under all of the facts of the. case.” This bill would show that when appellant’s said amended motion for new trial was heard on April 15, 1913, appellant had eight members of the jury in open court and asked permission to swear them “by whom the defendant’s attorneys stated they believed, and said they had been so informed, they could prove that the verdict of the jury was arrived at in this manner; that the twelve jurors agreed in advance that each man set down the number of years he was in favor putting the defendant in the penitentiary for, to add up the twelve sums,.and to divide the total sum by twelve, and that each of the jurors agreed to be bound by the result obtained, that each juror did put the amount or number of years he was in favor of on a piece of paper, and all of the different numbers of years were added together, and were then divided by twelve and the result was nineteen years, and that the jury then affixed his punishment in their verdict at nineteen years in the penitentiary.” From all that appears in the record on this subject, the above presents the matter substantially correctly.
Then there appears in the record on this subject what purports to be a bystander’s bill, which was not taken or attempted to be filed until May 26, 1913, thirty-eight days after the court had adjourned for the term. The court made and filed a qualification of this purported bystander’s bill which, he says, was filed “without my knowledge or notice to the district attorney, was presented to me for approval within the time prescribed by law and same was disallowed for the reason therein indorsed, and being in substance as follows: For the reason that a bill of exception to the same subject matter, viz: the refusal of the court to hear testimony on defendant’s motion for a new trial had been duly prepared by the defendant and presented to me for approval and by me duly approved and, as approved, agreed to and accepted by the defendant and ordered filed as a part of the record in this case during the session of the court and which bill of exception so approved, in substance, states the true facts as to the action of the court in refusing
to hear testimony on said motion for new trial. The clerk of the court is ordered to file the foregoing statement and explanation in connection with said purported bill of exception, make same a part of the record in this cause.”
There is but one order in the record which is dated April 15, 1913, by which it is ordered “the defendant be and he is hereby granted thirty days after the adjournment of this court in which to file a statement of facts and bills of exception.”
The statute authorizes a statement of facts of the evidence on the trial of the cause to be filed at any time within ninety days after the adjournment of court, or ninety days after the order overruling the motion for a new trial in ease the term of court lasts longer tiran eight weeks, without any order of the court to that effect. It also allows the filing of bills of exception within thirty days after said time, without any order of the court, but’ if the bills of exception are not filed within said thirty days, then they can not be legally filed, unless the court by order properly and timely made, authorizes the filing of such bills of exceptions after said thirty days. By such proper order, timely made, the time for filing such bills of exception may be extended for ninety days but no longer. Section 7, page 266 of the Act approved March 31, 1911, of the Thirty-second Legislature, at its regular session. This not only is statutory, but this court has all the time so held in a large number of cases unnecessary to cite. So that under no circumstances is this court required or authorized to consider said purported bystander’s bill proven up and filed thirty-eight days after the adjournment of court.
As shown above, the said ground of the motion for new trial was not sworn to by appellant or anyone else, and was not supported by the independent affidavit of anyone whomsoever. In Bryant v. State, 69 Texas Crim. Rep., 457, 153 S. W. Rep., 1156, this court said: “It has always been held that when matters extrinsic the record are sought to be raised in the motion for new trial, such grounds should be verified by the affidavit of the appellant,” citing Barber v. State, 35 Texas Crim. Rep., 70. See, also, Serop v. State, 69 Texas Crim. Rep., 399, 154 S. W. Rep., 558. This court has uniformly and in many eases held that an affidavit attacking the verdict of the jury can not be considered by this court and is a nullity, even though sworn to, if the affidavit is made before appellant’s attorney. Maples v. State, 60 Texas Crim. Rep., 169; Patterson v. State, 63 Texas Crim. Rep., 297; Scott v. State, 65 Texas Crim. Rep., 40, 143 S. W. Rep., 610. So that, as this matter is shown in the record, the action of the court presents no reversible error.
The record shows that several years before the killing of Emmett Moore, deceased, by appellant that said Moore and appellant’s wife had been married, but divorced, and that after the divorce said Moore had married another woman and appellant 'had married and was living with the former wife of Emmett Moore, Sallie, as his wife; that when Moore and Sallie were divorced, Sallie had two children. After the divorce,
a question came up between them as to the custody of the younger of these two children. Deceased had procured its custody and had his mother take charge of it for him and she kept such charge for about a year. Shortly before the killing Sallie had managed to get possession of this child, without the consent of the deceased, and the deceased began to try to regain possession of the child. He was much attached to it. Sallie had all the time retained the possession of her older child. Deceased at no time attempted to get possession of that child. The theory of the State was, and there was evidence tending to support it, that the killing occurred because of. the deceased’s repeated attempts to regain possession of this younger child. Appellant’s contention was that the killing did not occur about the possession of this younger child, but that it occurred because of the deceased’s conduct towards appellant’s wife in attempting to induce her to leave appellant and come back to and live with the deceased, and the deceased’s repeated attempts to induce Sallie to do this and his solicitations to get away from appellant and have illicit sexual intercourse with him. Appellant introduced his wife, Sallie, as a witness for him and had her testify, among other things, that the deceased was the father of both of her children. This older child was bom within a few months prior to the marriage of deceased and Sallie, and the question arose as to the paternity of that older child. Her conception resulting in the birth of this child occurred months before deceased and she were married. The State attempted to show that appellant and not deceased was the real father of Sallie’s older child. Sallie testified, at appellant’s instance,- that deceased and not appellant was the real father of her older child. In this attitude the State was permitted, in cross-examination of Sallie Hicks, appellant’s wife, when she was on the stand, after she had testified in substance as stated above, to ask -her if appellant and not deceased was the father of her older child. And further, that a few days before the trial when the deputy sheriff, Mr. Ellison, summoned her as a witness, if she did not tell him that deceased was not the father of her older child and that deceased did not claim the said older child as his. She denied telling Mr. Ellison any such thing. The court then permitted the State to introduce Ellison and prove by him that at said time and place she did make to him that statement. The court, in qualifying appellant’s bills on this subject, stated substantially that such were the issues and the evidence introduced by appellant and testified to by his wife, and that he permitted the cross-examination of appellant’s wife and the contradiction of her by Mr. Ellison under the circumstances. In our opinion, under the circumstances of this case, the action of the court was correct.
By another bill appellant complains of the language by the district-attorney in his closing argument to the jury to the effect that the State had proved the main facts of the case, as to the actual killing, by good white men, naming them, and that we have several other witnesses summoned, both black and white,- by whom we could have proven the same facts, but consider it useless to put them on the stand as defendant
had not contradicted their testimony; that the said witnesses were present and would have testified as the other witnesses, and the defendant could have put them on the stand if the State’s witnesses had not told the truth. The court, in approving appellant’s bill to this effect, states that no written instructions were asked by defendant to said remarks. There was no controversy that appellant killed the deceased,—he himself so testifying and there was practically no difference between him and the State’s witnesses as to the immediate facts of the killing. Even if the district attorney’s remarks were improper, under the facts of this case, they present no reversible error.
The appellant produced, identified and introduced in evidence some letters by the deceased to his said wife, Sallie. One of them is quite lengthy. As a whole they show that the deceased claimed to have great affection for her and for her and his younger child, and was pleading. for her to abandon appellant and go back to him and live with him in illicit sexual relations. Appellant’s bills show that, after argument for both sides had been concluded and the court had charged the jury, and they were ready to retire to consider their verdict, appellant’s attorneys privately approached the court and requested that the jury be permitted to take these letters with them in their retirement. This request was not made in the hearing of the jury and the jury at no time requested to have the letters with them, and the court did not at any time advise the jury that they could not have said letters in their final deliberations. The bills, as qualified by the court, further show that all these letters were read distinctly and intelligently to the jury by counsel when offered in evidence, and in the argument to the jury their contents was fully and ably discussed and the jury was fully advised of all therein contained.
Our statute, article 751, Code of Criminal' Procedure, provides: “The jury may take with them on their retirement to consider their verdict, all the original ■ papers in the cause, and any papers used as evidence.” This .article of the statute shows that it is not mandatory but permissible and. it has always been so held and construed by this court. See some of the decisions cited under this article in the Revised Code of Criminal Procedure of 1911, and in note by Judge White under the same article in his Ann. C. C. P. The action of the court presents no reversible error.
Appellant’s other complaints are attacks on the court’s charge and the refusal of the court to give some charges requested by him. Host of these complaints are very general and point out no specific error. However, we will pass on all of them, considering those raising kindred subjects together.
One complaint in effect is that the court’s charge on murder in the second degree required that they should convict him of that degree of murder, unless they found him not guilty under his claimed self-defense, and claimed that thereby the court eliminated from the minds of the jury manslaughter, thereby virtually telling the jury that they must either convict of second degree murder or find self-defense.
It is elementary in this State that in determining the sufficiency of a charge it must be construed as a whole and not by isolated extracts, excerpts, or paragraphs, and that a charge on a murder trial can not all be given in one paragraph, but must necessarily be given in several. In discussing this question it will be necessary to show what the court did charge in this case.
After correctly defining murder in the first degree in accordance with the statute, in a separate paragraph, the court told the jury: “Murder is distinguishable from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or manslaughter or which excuse or justify the homicide.” This is a quotation of the latter part of the definition of murder, art. 1140, P. G. The charge then defines malice, and express malice, and proceeds to fully instruct the jury correctly as to murder in the first degree and submit that degree of murder to the jury for a finding. Then he takes up murder in the second degree, defines it and submits that degree to the jury for a finding, charging as follows: “Malice is also a necessary ingredient of the offense of murder in the second degree. The distinguishing feature, however, so far as the element of malice is concerned, is that in murder in the first degree malice must be proved, to the satisfaction of the jury, beyond a reasonable doubt, as an existing fact, while in murder in the second degree malice will be inferred from the fact of an unlawful killing.
“Implied malice is that which the law infers from or impntes 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 the evidence on the one hand showing express malice, and on the other hand there is nothing in evidence that will reduce the killing below the grade of murder, then the law implies malice, and the homicide is murder in the second degree.
“The instrument or means by which the homicide is committed are to be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was.used such intention evidently appears.
“Every person is permitted by law to defend himself against any unlawful attack, reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. Homicide is justified by law when committed in defense of one’s own person against any unlawful and violent attack, made in such a manner as to produce a reasonable expectation or fear of death or some serious bodily injury.
“If you believe from the evidence, beyond a reasonable doubt, that
the defendant, with implied malice, in the County of Caldwell, and State of Texas, on the 29th day of March, 1913, as alleged, -with a deadly weapon and not in his own self-defense as the same is herein defined, did shoot and thereby kill Emmit Moore as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the State penitentiary for any period that the jury may determine and state in their verdict, provided it be not. less than five years.”
The definition of murder in the second degree and how and when the law infers malice from an unlawful killing in exact accordance with the two paragraphs of the court’s charge above quoted, has been the established law of this State ever since we have had two degrees of murder. Judge White, in his Ann. P. C., in sec. 1257, after stating what is ipso facto murder of the first degree, says: “If, however, they do not establish murder committed in one of these modes, and do not show any justification, excuse or mitigation for the homicide, the law implies the malice and the murder is in the second degree,” citing McCoy v. State, 25 Texas, 33; Jordan v. State, 10 Texas, 479; Hamby v. State, 36 Texas, 523; Jones v. State, 13 Texas, 168; Atkinson v. State, 20 Texas, 522; Farrer v. State, 42 Texas, 265; Ferrell v. State, 43 Texas, 503; Hill v. State, 11 Texas Crim. App., 456; Ellison v. State, 12 Texas Crim. App., 557; Neyland v. State, 13 Texas Crim. App., 536; Martinez v. State, 30 Texas Crim. App., 129; Childers v. State, 33 Texas Crim. Rep., 509; Baltrip v. State, 30 Texas Crim. App., 545.
Again in section 1259 he says: “Implied malice is the essential characteristic of murder in the second degree. It is not a fact, but an inference or conclusion deducible from particular facts and circumstances judicially ascertained. Thus, when the fact of an unlawful killing is established and there are no circumstances in evidence which show the existence of express malice, or which tend to mitigate, excuse or justify the act, then the law implies malice and the offense is murder in the second degree,” citing Martinez v. State, supra; Harris v. State, 8 Texas Crim. App., 90; Tooney v. State, 5 Texas Crim. App., 163; Douglass v. State, 8 Texas Crim. App., 520; Hubby v. State, 8 Texas Crim. App., 597; Hill v. State, supra; Ellison v. State, supra; Neyland v. State, supra; Reynolds v. State, 14 Texas Crim. App., 427; Turner v. State, 16 Texas Crim. App., 378; Stanley v. State, 16 Texas Crim. App., 392; Smith v. State, 19 Texas Crim. App., 95; Hart v. State, 21 Texas Crim. App., 163; Baltrip v. State, supra.
This court in Barton v. State, 53 Texas Crim. Rep., 443, expressly approved and commended as admirably presenting the law on the subject a charge of which the two paragraphs first above quoted are literally the same. Mr. Branch, in his Criminal Law, section 426, in the first subdivision on page 255, gives as a correct" charge, substantially the first paragraph above quoted, citing Douglass v. State, 8 Texas Crim. App., 520; Neyland v. State, 13 Texas Crim. App., supra, and Gonzales v. State, 30 Texas Crim. App., 203, and they follows with a
. literal copy of the second paragraph as the law on the subject, and cites Barton, supra; Megrath v. State, 35 Texas Crim. Rep., 413; Smith v. State, 45 Texas Crim. Rep., 552; Carson v. State, 57 Texas Crim. Rep., 394, and Harris v. State, 8 Texas Crim. App., 90.
There can be no question but that the first two paragraphs of the court’s charge above given are unquestionably correct.
The appellant took no exception whatever to the charge of the court on murder in the second degree before the trial was concluded. He first complained of. it in his said amended motion for new trial. He asked no instruction on the subject to cure the defect, if there be an injurious defect in the court’s charge. Article 743, Code of Criminal Procedure, as it was in force at the time of this trial, prohibits this court under such circumstances from reversing the judgment, unless the error appearing from the record was calculated to injure his rights. This must be determined from the whole record.
In addition to what is quoted above, as portions of the court’s charge, the court in separate complete paragraphs charged on self-defense and plainly told the jury that if appellant killed the deceased in self-defense to acquit him. The court also charged manslaughter under the statute in separate and complete paragraphs, and in submitting manslaughter told the jury that if they believed beyond a reasonable doubt all of the facts which show manslaughter to find appellant guilty of manslaughter and assess his punishment accordingly, and in two other paragraphs he told the jury:
“Should you find the defendant guilty of murder in the first degree, guilty of murder in the second degree, or guilty of manslaughter, you will state .of which offense found guilty; and if of murder, you will state of which degree of murder, and for whatever offense you may find him guilty, you will affix the punishment for that crime as above directed.
“If from the evidence you are satisfied beyond a reasonable doubt that the defendant is guilty of murder, but have a reasonable doubt whether it was committed upon express or implied malice, then you must give the defendant the benefit of such doubt and not find him guilty of a higher grade than murder in the second degree. Or, if from the evidence you believe beyond a reasonable doubt that the defendant is guilty of some grade of culpable homicide, but you have a reasonable doubt whether the offense is murder in the second degree or manslaughter then you must give the defendant the benefit of the doubt and in such case if you find him guilty it could not be of a higher grade of offense than manslaughter.” Then in addition, charged that the burden of proof is on the State and the defendant is presumed to be innocent until his guilt is established by legal evidence beyond a • reasonable doubt, and in case you have a reasonable doubt as to defendant’s guilt you will acquit him and say by your verdict not guilty.
It is true that this court, in Best v. State, 58 Texas Crim. Rep., 327, and cases following it, laid down and approved a charge on submitting murder in the second degree, wherein, when self-defense and man
slaughter are both raised in the case, embracing an exception of both self-defense and manslaughter, which we still commend; but the court in that case and in those following it, does not hold that where these defenses are not excepted, that the charge would be necessarily erroneous. On the contrary this court has repeatedly held that where such exceptions are not made in submitting murder in the second degree for a finding, but are in other portions of the charge specifically submitted, that no reversible error is presented. Childs v. State, 35 Texas Crim. Rep., 573, 34 S. W. Rep., 939; McGrath v. State, 35 Texas Crim. Rep., 413, 34 S. W. Rep., 941; Smith v. State, 48 Texas Crim. Rep., 233; Foster v. State, 51 Texas Crim. Rep., 77; and see, also, Puryear v. State, 56 Texas Crim. Rep., 231; Davis v. State, 57 Texas Crim. Rep., 545; Pratt v. State, 59 Texas Crim. Rep., 167; and Pratt v. State, 59 Texas Crim. Rep., 635. So that appellant’s complaint of said charge under the facts and circumstances of this case does not present any reversible error.
Several general complaints are made by appellant to the court’s charge on self-defense, such as the failure to submit “a clean cut charge of self-defense,” simply submitting abstract propositions and not applying the facts to the law. Wherein or how is not pointed out. Again, on that subject, failing to apply the facts to the law of apparent danger. Again, that the jury must view all the facts and defendant’s surroundings from his standpoint. Again, “in an attempt to charge on self-defense and apparent danger by using the words: 'Upon the law of self-defense you are instructed that if from the acts of the said Emmett Moore, or from his words, coupled with his acts,’ the court by using the words 'his words coupled with his acts’ charged the jury in substance that they must find before they find self-defense that the deceased, at the time of the homicide, used some words towards defendant, when in fact there were no words used, nor relied upon by the defendant.” Appellant requested two special charges along the same line, which were refused.
Even if the evidence in this case in any way called for a charge on self-defense, taking the court’s charge as a whole, we think all of appellant’s complaints are without foundation, and that they are substantially met by the charge of the court which was given. In submitting self-defense the court did not merely lay down abstract propositions of law and not apply the facts to the case, as claimed by appellant, and did cover the question of apparent danger and required the jury to consider the facts from the defendant’s standpoint. .Appellant’s complaint that the court in instructing self-defense used “words coupled with acts” could not have affected appellant injuriously. If at all, that expression would have been in his favor and not against him.
However, we desire to say that in our opinion, after a most careful and thorough study of the evidence in this case, self-defense was not in the case and should not have been submitted by the court. But its submission was clearly in favor and not against him, and, of course,
he can not complain because thereof. Jones v. State, 63 Texas Grim. Eep., 394, and authorities therein cited.
The evidence does not show that deceased made any threat against appellant; hence, no charge on threats was called for.
Appellant had several complaints of the charge of the court on manslaughter. The first is that in charging upon, and what constituted, adequate cause he charged only on insulting language towards appellant’s wife and ignored and eliminated from his charge all acts and conduct of the deceased at the very time of the killing that would tend to show adequate cause.. The next complaint is inconsistent with this in that he therein complains that the court told the jury that the provocation must arise at the time of the killing, and that the passion was not the result of a former provocation and that the act causing death must be caused directly by the passion arising out of the provocation then given, etc. The court in the charge on manslaughter followed substantially, if not literally, our statute on the subject. And among other things he told the jury that the passion mentioned in the statute must spring from some provocation sufficient to produce in the mind of a person of ordinary temper such a degree of one of the mental emotions mentioned in the statute as to render, and at the time of the killing, did render, the mind of the defendant incapable of cool reflection, “and in determining such state of mind you must do so from all the evidence in the case.” Then he told the jury that insulting words or conduct of the deceased towards appellant’s wife was in law adequate cause, if such words or conduct were the real cause which provoked the killing; provided, that the killing took place immediately upon the happening of insulting conduct or uttering of the insulting words, or so soon thereafter as the party killing may meet with the party killed after having been informed of such conduct, and the jury is at liberty to determine in every case whether such insulting words or conduct were the real cause which provoked the killing; and if such words or conduct were the real cause which provoked the killing, and if the killing occurred at the first meeting of the parties, then the party killing could not be convicted of a higher offense than manslaughter. In submitting manslaughter for a finding he told the jury:
“If you believe from the evidence, beyond a reasonable doubt that the defendant, Mannie Hicks, in the County of Caldwell and State of Texas, on or about the 29th day of March, A. D. 1913, with a gun, the same then and there being a deadly weapon, and not in defense of himself against an unlawful attack reasonably producing a rational fear or expectation of death or serious bodily injury, did unlawfully shoot and thereby kill the said Emmett Moore, and you further believe from the evidence that at the time of the killing, if any, the mind of the defendant was under the immediate influence of sudden passion aroused by adequate cause, as the same is herein explained, and while the mind of the defendant was in such condition, he shot with intent to kill and did kill the deceased, then you will fin4 the defendant guilty of manslaughter and assess his punishment at confinement in
the penitentiary for a term of not less than two years nor more than (5) years as you may determine and state in your verdict.”
As stated above, the State’s contention was, and there was evidence tending to show, that appellant did not kill the deceased because of the insulting words and conduct of the deceased towards his wife, hut-over the custody of the minor child of deceased by appellant’s wife when they were married. The deceased’s first insulting letter to appellant’s wife was written by deceased and received by her in November, 1912, and appellant, as the uncontradicted evidence shows, had met the deceased several times since then. The last letter was written, it is true, just two days before the killing occurred, but about that same time his wife had received a letter from the deceased’s attorney demanding the possession from her of said child, and showing that if she did not voluntarily surrender the child legal proceedings would be instituted by deceased for its possession, and that appellant took that letter to town with him the day of the killing and his first business in town was seeing about the possession of that child. It was proper, therefore, for the court to tell the jury that the insulting words or conduct of the deceased towards appellant’s wife must have been the cause of the killing. Again, the evidence was sufficient to show that the deceased passed in a few feet of appellant the day of the killing and some time before the killing, but at that time appellant did not have his gun. Appellant himself testified that a short time before the killing he saw the deceased when the deceased had a gun, and that it was some time thereafter when he saw him again without any gun, when he, appellant, had his gun, loaded with
buckshot;
that he, without any provocation at that particular time, when the deceased was making no demonstration whatever, but quietly and peaceably walking along the streets with, his hands swinging down, shot and killed him. We think none of appellant’s attacks on the court’s charge on manslaughter show any reversible error.
The verdict of the jury is not excessive in contemplation of law, nor the facts of this case. If the State’s case is to be believed the killing of the deceased by appellant almost, if it did not fully, amount to a cold-blooded assassination.
There is nothing else raised that requires any discussion. The judgment will be affirmed.
Affirmed.