Winkler, J.
The appellant was indicted for the murder of Edward H. Butler. The indictment charges that the wounds of which the deceased died were inflicted by the appellant, in Houston County, on December 27, 1877, under which the deceased, it is averred, languished for one day, and from which he died December 28, 1877.
On the trial, the jury, by their verdict, acquitted the accused of murder in the first degree, and found him guilty of murder in the second degree, and assessed his punishment at confinement in the State penitentiary for the period of twenty-seven years.
A motion for a new trial was made, which was by the court overruled, and an appeal is prosecuted.
The assignment of errors and the motion for a new trial involve two general questions :
[437]*4371. Was the testimony adduced on the trial below sufficient to support the finding of the jury?
2. Was there any error in the charge of the court to the jury, such as would require at the hands of this court a reversal of the judgment?
With reference to the first question, we are constrained to say, after a careful examination of the testimony, as we find it set out in the statement of facts, that this must be answered in the affirmative. There is no controversy as to the fact that the deceased came to his death from blows inflicted by the hand of the accused, by the use of a deadly weapon'. It is, however, urged on behalf of the appellant, either that the accused, under the testimony as detailed by the witnesses, was entitled to an acquittal on the ground of self-defence, or that, at most, he ought not to have been convicted of any higher grade of culpable homicide than manslaughter. There is some apparent conflict as to some of the facts of the rencontre which resulted in the homicide, between the State’s witnesses on the one hand, and those put on the stand by the accused on the other. In such a state of case, it devolved upon the jury to deal with the conflict in the evidence, and if the differences between the two sets of witnesses were irreconcilable, and the jury, in order to arrive at a verdict, were compelled to give credence to one set of witnesses to the exclusion of the statements of the other set, or the witnesses offered by the adverse party, they did not, in so doing, transcend the bounds of their duty as defined by law, and this court would not be warranted in setting aside the verdict on that account, the testimony being otherwise sufficient.
As to the charge of the court, we propose to notice briefly, so far as may be deemed necessary, those portions which were complained of as erroneous in the assignment of errors, and discussed in the brief and oral arguments of the appellant’s counsel. Before doing so, however, it may not be [438]*438amiss to note generally that the judge, in his charge to the jury, instructed them minutely as to the different grades of homicide which they would consider in applying the evidence, and in coming to a conclusion as to what their verdict should be, embracing in these instructions the law of murder, and the distinction between murder of the first degree and murder of the second degree, and the law of manslaughter, and the difference between that offence and murder, together with the law of self-defence, as well as a definition of malice, and the two kinds of malice, viz., express malice and implied malice, and the legal presumption of innocence, and reasonable doubt as to the general question of the guilt or innocence of the accused, as well as between the different degrees of homicide involved in the trial.
The charge, as a whole, appears to have been prepared strictly with reference to the different aspects of the case as developed by the testimony, and with scrupulous regard for all the legal rights of the accused, and a proper appreciation of the momentous issues involved. And, furthermore, the jury were properly instructed as to their powers in determining as to the credibility of the Avitnesses and the weight and credit to be given to their testimony. It may not be amiss to notice, further,' that no exception was taken, at the time of delivery, to the charge, or to any portion thereof, and that no additional instructions were asked by either party, nor were any explanations or modifications asked by counsel representing either side of the case; and in the motion for a new trial, even, no special objection is made to the charge of the court as given to the jury.
Notwithstanding all this, the earnestness and zeal manifested by counsel for the appellant, particularly in the oral argument before the court, would seem to demand at our hands some specific attention to those portions of the charge specifically complained of in the assignment of errors. It is stated in the third error assigned, that “ it is believed [439]*439the court erred in the charge to the jury in defining murder, in this : that it defines implied malice to arise in every act of killing, when the facts do not reduce it to manslaughter or make it-excusable, and it is expressly charged, as matter of law, that such killing develops the existence and possession of a heart regardless of social duty and fatally bent on mischief. It is believed that this charge was calculated to impress the jury that such killing, as matter of law, was murder in the second degree, when it is believed the jury should have been left to decide both as to the manner of killing and as to its effect, with respect to the grade of the offence, if any, of which the defendant was guilty;” and, fourth, ‘‘ the definition of implied malice is not plainly, clearly, and correctly set forth.”
The charge thus complained of as erroneous is found in the general charge of the court, in the following language, to wit: “The kind of malice known as implied malice is such state of the slayer’s mind as is implied from the circumstances attending a homicide voluntarily committed, with a deadly weapon, without excuse, justification, or such mitigating circumstances as would reduce the offence to manslaughter, and negative the existence of a wanton, cruel mind, disregarding the safety of his fellow-men or their lives, — a heart regardless of social duty and fatally bent on mischief. When a man kills another, under circumstances indicating that the act was the result of a sudden, rash conception and impulse of the mind, and not from a cool, deliberate mind and formed design to kill or do serious bodily harm, such killing would be murder in the second degree, unless other facts in the case would justify the act, as in self-defence, or reduce it to the crime of manslaughter.”
We are of opinion the criticism upon this portion of the charge is fully met, and the argument answered, by setting forth the charge as it was given to the jury. Especially is [440]*440this so when the charge complained of is considered with reference to the preceding and succeeding portions: the former defining murder generally, and murder of the first degree, arid the meaning of the term “express malice;” the latter giving'the law as to manslaughter — of which hereafter — and the law as to self-defence.
“All murder committed by poison, starving, torture, or express malice is murder in the first degree, and all murder not of the first degree is murder of the second degree.” Penal Code, art. 608 (Pasc. Dig., art 2267, and note).
Free access — add to your briefcase to read the full text and ask questions with AI
Winkler, J.
The appellant was indicted for the murder of Edward H. Butler. The indictment charges that the wounds of which the deceased died were inflicted by the appellant, in Houston County, on December 27, 1877, under which the deceased, it is averred, languished for one day, and from which he died December 28, 1877.
On the trial, the jury, by their verdict, acquitted the accused of murder in the first degree, and found him guilty of murder in the second degree, and assessed his punishment at confinement in the State penitentiary for the period of twenty-seven years.
A motion for a new trial was made, which was by the court overruled, and an appeal is prosecuted.
The assignment of errors and the motion for a new trial involve two general questions :
[437]*4371. Was the testimony adduced on the trial below sufficient to support the finding of the jury?
2. Was there any error in the charge of the court to the jury, such as would require at the hands of this court a reversal of the judgment?
With reference to the first question, we are constrained to say, after a careful examination of the testimony, as we find it set out in the statement of facts, that this must be answered in the affirmative. There is no controversy as to the fact that the deceased came to his death from blows inflicted by the hand of the accused, by the use of a deadly weapon'. It is, however, urged on behalf of the appellant, either that the accused, under the testimony as detailed by the witnesses, was entitled to an acquittal on the ground of self-defence, or that, at most, he ought not to have been convicted of any higher grade of culpable homicide than manslaughter. There is some apparent conflict as to some of the facts of the rencontre which resulted in the homicide, between the State’s witnesses on the one hand, and those put on the stand by the accused on the other. In such a state of case, it devolved upon the jury to deal with the conflict in the evidence, and if the differences between the two sets of witnesses were irreconcilable, and the jury, in order to arrive at a verdict, were compelled to give credence to one set of witnesses to the exclusion of the statements of the other set, or the witnesses offered by the adverse party, they did not, in so doing, transcend the bounds of their duty as defined by law, and this court would not be warranted in setting aside the verdict on that account, the testimony being otherwise sufficient.
As to the charge of the court, we propose to notice briefly, so far as may be deemed necessary, those portions which were complained of as erroneous in the assignment of errors, and discussed in the brief and oral arguments of the appellant’s counsel. Before doing so, however, it may not be [438]*438amiss to note generally that the judge, in his charge to the jury, instructed them minutely as to the different grades of homicide which they would consider in applying the evidence, and in coming to a conclusion as to what their verdict should be, embracing in these instructions the law of murder, and the distinction between murder of the first degree and murder of the second degree, and the law of manslaughter, and the difference between that offence and murder, together with the law of self-defence, as well as a definition of malice, and the two kinds of malice, viz., express malice and implied malice, and the legal presumption of innocence, and reasonable doubt as to the general question of the guilt or innocence of the accused, as well as between the different degrees of homicide involved in the trial.
The charge, as a whole, appears to have been prepared strictly with reference to the different aspects of the case as developed by the testimony, and with scrupulous regard for all the legal rights of the accused, and a proper appreciation of the momentous issues involved. And, furthermore, the jury were properly instructed as to their powers in determining as to the credibility of the Avitnesses and the weight and credit to be given to their testimony. It may not be amiss to notice, further,' that no exception was taken, at the time of delivery, to the charge, or to any portion thereof, and that no additional instructions were asked by either party, nor were any explanations or modifications asked by counsel representing either side of the case; and in the motion for a new trial, even, no special objection is made to the charge of the court as given to the jury.
Notwithstanding all this, the earnestness and zeal manifested by counsel for the appellant, particularly in the oral argument before the court, would seem to demand at our hands some specific attention to those portions of the charge specifically complained of in the assignment of errors. It is stated in the third error assigned, that “ it is believed [439]*439the court erred in the charge to the jury in defining murder, in this : that it defines implied malice to arise in every act of killing, when the facts do not reduce it to manslaughter or make it-excusable, and it is expressly charged, as matter of law, that such killing develops the existence and possession of a heart regardless of social duty and fatally bent on mischief. It is believed that this charge was calculated to impress the jury that such killing, as matter of law, was murder in the second degree, when it is believed the jury should have been left to decide both as to the manner of killing and as to its effect, with respect to the grade of the offence, if any, of which the defendant was guilty;” and, fourth, ‘‘ the definition of implied malice is not plainly, clearly, and correctly set forth.”
The charge thus complained of as erroneous is found in the general charge of the court, in the following language, to wit: “The kind of malice known as implied malice is such state of the slayer’s mind as is implied from the circumstances attending a homicide voluntarily committed, with a deadly weapon, without excuse, justification, or such mitigating circumstances as would reduce the offence to manslaughter, and negative the existence of a wanton, cruel mind, disregarding the safety of his fellow-men or their lives, — a heart regardless of social duty and fatally bent on mischief. When a man kills another, under circumstances indicating that the act was the result of a sudden, rash conception and impulse of the mind, and not from a cool, deliberate mind and formed design to kill or do serious bodily harm, such killing would be murder in the second degree, unless other facts in the case would justify the act, as in self-defence, or reduce it to the crime of manslaughter.”
We are of opinion the criticism upon this portion of the charge is fully met, and the argument answered, by setting forth the charge as it was given to the jury. Especially is [440]*440this so when the charge complained of is considered with reference to the preceding and succeeding portions: the former defining murder generally, and murder of the first degree, arid the meaning of the term “express malice;” the latter giving'the law as to manslaughter — of which hereafter — and the law as to self-defence.
“All murder committed by poison, starving, torture, or express malice is murder in the first degree, and all murder not of the first degree is murder of the second degree.” Penal Code, art. 608 (Pasc. Dig., art 2267, and note).
“Murder is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offence to negligent homicide or manslaughter, or which excuse or justify the homicide.” See preceding articles of the Code.
The charge complained of is in full accord with the statute law, and adjudications thereunder, and was not an improper or erroneous instruction under the facts of the case.
But it is insisted that the court erred in not submitting the whole question to the jury, instead of charging them that a killing under the circumstances would be, in law, murder of the second degree. This argument is answered by the plain provisions of the Code of Criminal Procedure, art. 573: “The jury are the exclusive judges of the facts in every criminal cause, but not of the law in any case. They are bound to receive the law from the court, and be governed thereby.” Pasc. Dig., art. 3058.
The charge of the court in defining manslaughter, whilst the charge was especially applicable to that grade, was not rendered erroneous and improper by the addition of the following restrictive clause, to wit: “Yet, nevertheless, if the slayer provoked and sought a conflict, with the apparent intention of killing the deceased, or with some dangerous weapon to inflict on him serious bodily harm that [441]*441might result in death, the offence would not come within the meaning and definition of manslaughter; and unless-the slayer would be justified under the law of self-defence, the homicide would amount to murder, and whether the-murder would be of the first or of the second degree would. depend upon the distinction between these offences which I. have heretofore given you.”
In this we find no error, when we consider the full and explicit charge on the subject of manslaughter, and the facts-proved on the trial.
Counsel cite the case of Maria v. The States 28 Texas, 698, in support of the argument on this branch of the case-at bar. Whilst the correctness of the ruling in that case is-not questioned, it will be seen that it was in some respects exceptional; and it is clearly distinguishable from the present case, and the rulings do not apply with any perceivable force.
It is urged, in argument, that the punishment imposed is-excessive. With this we have nothing to do. The punishment is within the limit prescribed by the statute law of the land, and if the law prescribes inadequate punishment for this or any other offence, the subject addresses itself to the-legislative and not the judicial branch of the government.
Upon the whole, we are of opinion that the charge of the-court, in every particular, was in accordance with the law,, and applicable to the pleadings and the evidence ; and, finding no substantial error in the proceedings, the judgment is-affirmed.
Affirmed.