RAMSEY, Judge.
Appellant was convicted in the Criminal District Court of Harris County of murder in the second degree, and his punishment assessed at twenty-five years confinement in the penitentiary.
Appellant was indicted for the murder of one Philip Preager. The indictment was in two counts, the second count charging, in substance, that appellant “did then and there unlawfully and fraudulently break and enter a house then and there situated, occupied and controlled by Jacob Preager and while in the perpetration, and in the attempt at the perpetration of burglary in said house, did then and there set fire to said house, and did then and there and thereby cause Philip Preager, who was then and there in said house to be burnt by moans of said fire; so that the said Phillip Preager was killed by reason thereof and departed this life because of the injuries inflicted upon him by said fire, and so the grand jurors say, that the said Charles Jones did then and there with
malice aforethought kill said Phillip Preager, by said means, and that said killing and murder was committed while the said Charles Jones was so engaged as aforesaid.” On conviction counsel for appellant filed a motion in arrest of judgment which, in substance, suggested to the court that the judgment of conviction rendered, should be arrested for the reason that the indictment upon which appellant was tried did not put him upon notice of what he was charged with, and that the same was too vague, uncertain and confounding in its allegations, and set forth no statutory crime. This same issue and question is also presented in appellant’s motion for a new trial, and insistence is here made that the indictment is defective, in that it does not in terms set out the constituent elements of burglary and of arson. It is our judgment that this contention cannot be sustained. Article 711 of our Penal Code, is, as follows : “All- murder committed by poison, starving, torture or with express malice, or committed in the perpetration or in the attempt at the perpetration of arson, rape, robbery or burglary, is murder in the first degree, and all murder not of the first degree is murder of the second degree.”
This statute has been not infrequently considered and passed on by this court, and it has been held that where an indictment in the usual form charges murder, it charges all kinds or species of murder that could be committed by the means alleged, and if the party used the means and committed the homicide in the perpetration or in the attempt at the perpetration of arson, rape, robbery or burglary, all this may be proved without specific allegations and a conviction be had therefor under such indictment. See Tooney v. State, 5 Texas Crim. App., 163; Roach v. State, 8 Texas Crim. App., 478; Reyes v. State, 10 Texas Crim. App., 1; Sharpe v. State, 17 Texas Crim. App., 486; and Mendez v. State, 29 Texas Crim. App., 608. It has also been held that, although an indictment charged the killing was with express malice aforethought, a conviction under it will not be disturbed, because the proof showed not only such malice, but also that the killing was done in the perpetration of burglary or robbery. Mitchell v. State, 1 Texas Crim App., 193, and Wilkins v. State, 35 Texas Crim. Rep., 525. Under this statute, it has also been held that when the indictment charges a murder committed in the perpetration, or attempt at the perpetration of arson, rape, robbery or burglary, and though such murder is ipso facto murder in the first degree, it is characterized by malice aforethought as much as is murder committed upon express malice; and hence, since without malice aforethought no homicide can be murder, in all such cases it is essential that the indictment should allege that the killing was upon malice aforethought. Pharr v. State, 7 Texas Crim. App., 472; Johnson v. State, 30 Texas Crim. App., 419; May v. State, 33 Texas Crim. Rep., 74; King v. State, 34 Texas Crim. Rep., 228. The question here presented by appellant is, that the indictment should have defined and set out the constituent elements of burglary and arson. There is no authority supporting this contention. The statute does not so require, and it is worthy
of note, that the form laid down in White’s Annotated Penal Code does no more than state that the murder was done while the person so charged was unlawfully engaged in the perpetration of arson, rape or burglary, as the case might be. It is sufficient, we think, for the indictment to have alleged, as it did in the different counts, that the murder was committed in the perpetration of arson, and in the second count, as stated, in the perpetration of burglary. In both counts of this indictment, malice aforethought was expressly alleged, and taken altogether, it sufficiently advised appellant of the nature and character of the charge against him. It is not, therefore, necessary for the pleader to define with particularity the constituent elements of the offenses of burglary or arson, or what the defendant was doing at the time he committed the murder, further than that same was committed in the perpetration of arson and burglary.
It is contended, however, by appellant in his motion for a new trial, that in any event the court should have in his charge defined arson and burglary. We think the court did this so far as was required. In that portion of the court’s charge defining murder in the second degree, we find the following instruction: “But if you should find and believe from the evidence, beyond a reasonable
doubt,
that in Harris County, Texas, and about the 2nd day of July, A. D. 1901, that Jacob Preager, occupied and controlled a house, and that the defendant, Charles Jones, broke and entered the same, with the intent to fraudulently take corporeal personal property, of value, then and there in said house and without the consent of said Jacob Preager; and you should further find and believe from the evidence beyond a reasonable doubt, that the defendant, Charles Jones, did, acting with implied malice aforethought, as that expression has been herein defined and explained, did, set fire to said house of Jacob Preager, and that by reason of said act of said defendant, Charles Jones, in setting fire to said house said Philip Preager was burned and died therefrom, and that said act of said defendant was reasonably calculated to kill said Philip Preager, then find said defendant guilty of murder iu the second degree, and assess his punishment by confinement in the State penitentiary for any length of time not less than five years.” In view of the fact that appellant was charged with murder committed iu the perpetration of the crime of burglary, we think the charge above quoted contained all the demands of the law, and that he (appellant) was without complaint that the court did not give a more detailed definition of the offense of burglary.
Complaint is also made of the court’s charge in submitting express malice, on the ground, as claimed by counsel for appellant, that there is no evidence of express malice in the record. While we dó not accede to this view, still inasmuch as appellant was acquitted of murder in the first degree, the charge on express malice, even if erroneous, could furnish him with no just cause of complaint.
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RAMSEY, Judge.
Appellant was convicted in the Criminal District Court of Harris County of murder in the second degree, and his punishment assessed at twenty-five years confinement in the penitentiary.
Appellant was indicted for the murder of one Philip Preager. The indictment was in two counts, the second count charging, in substance, that appellant “did then and there unlawfully and fraudulently break and enter a house then and there situated, occupied and controlled by Jacob Preager and while in the perpetration, and in the attempt at the perpetration of burglary in said house, did then and there set fire to said house, and did then and there and thereby cause Philip Preager, who was then and there in said house to be burnt by moans of said fire; so that the said Phillip Preager was killed by reason thereof and departed this life because of the injuries inflicted upon him by said fire, and so the grand jurors say, that the said Charles Jones did then and there with
malice aforethought kill said Phillip Preager, by said means, and that said killing and murder was committed while the said Charles Jones was so engaged as aforesaid.” On conviction counsel for appellant filed a motion in arrest of judgment which, in substance, suggested to the court that the judgment of conviction rendered, should be arrested for the reason that the indictment upon which appellant was tried did not put him upon notice of what he was charged with, and that the same was too vague, uncertain and confounding in its allegations, and set forth no statutory crime. This same issue and question is also presented in appellant’s motion for a new trial, and insistence is here made that the indictment is defective, in that it does not in terms set out the constituent elements of burglary and of arson. It is our judgment that this contention cannot be sustained. Article 711 of our Penal Code, is, as follows : “All- murder committed by poison, starving, torture or with express malice, or committed in the perpetration or in the attempt at the perpetration of arson, rape, robbery or burglary, is murder in the first degree, and all murder not of the first degree is murder of the second degree.”
This statute has been not infrequently considered and passed on by this court, and it has been held that where an indictment in the usual form charges murder, it charges all kinds or species of murder that could be committed by the means alleged, and if the party used the means and committed the homicide in the perpetration or in the attempt at the perpetration of arson, rape, robbery or burglary, all this may be proved without specific allegations and a conviction be had therefor under such indictment. See Tooney v. State, 5 Texas Crim. App., 163; Roach v. State, 8 Texas Crim. App., 478; Reyes v. State, 10 Texas Crim. App., 1; Sharpe v. State, 17 Texas Crim. App., 486; and Mendez v. State, 29 Texas Crim. App., 608. It has also been held that, although an indictment charged the killing was with express malice aforethought, a conviction under it will not be disturbed, because the proof showed not only such malice, but also that the killing was done in the perpetration of burglary or robbery. Mitchell v. State, 1 Texas Crim App., 193, and Wilkins v. State, 35 Texas Crim. Rep., 525. Under this statute, it has also been held that when the indictment charges a murder committed in the perpetration, or attempt at the perpetration of arson, rape, robbery or burglary, and though such murder is ipso facto murder in the first degree, it is characterized by malice aforethought as much as is murder committed upon express malice; and hence, since without malice aforethought no homicide can be murder, in all such cases it is essential that the indictment should allege that the killing was upon malice aforethought. Pharr v. State, 7 Texas Crim. App., 472; Johnson v. State, 30 Texas Crim. App., 419; May v. State, 33 Texas Crim. Rep., 74; King v. State, 34 Texas Crim. Rep., 228. The question here presented by appellant is, that the indictment should have defined and set out the constituent elements of burglary and arson. There is no authority supporting this contention. The statute does not so require, and it is worthy
of note, that the form laid down in White’s Annotated Penal Code does no more than state that the murder was done while the person so charged was unlawfully engaged in the perpetration of arson, rape or burglary, as the case might be. It is sufficient, we think, for the indictment to have alleged, as it did in the different counts, that the murder was committed in the perpetration of arson, and in the second count, as stated, in the perpetration of burglary. In both counts of this indictment, malice aforethought was expressly alleged, and taken altogether, it sufficiently advised appellant of the nature and character of the charge against him. It is not, therefore, necessary for the pleader to define with particularity the constituent elements of the offenses of burglary or arson, or what the defendant was doing at the time he committed the murder, further than that same was committed in the perpetration of arson and burglary.
It is contended, however, by appellant in his motion for a new trial, that in any event the court should have in his charge defined arson and burglary. We think the court did this so far as was required. In that portion of the court’s charge defining murder in the second degree, we find the following instruction: “But if you should find and believe from the evidence, beyond a reasonable
doubt,
that in Harris County, Texas, and about the 2nd day of July, A. D. 1901, that Jacob Preager, occupied and controlled a house, and that the defendant, Charles Jones, broke and entered the same, with the intent to fraudulently take corporeal personal property, of value, then and there in said house and without the consent of said Jacob Preager; and you should further find and believe from the evidence beyond a reasonable doubt, that the defendant, Charles Jones, did, acting with implied malice aforethought, as that expression has been herein defined and explained, did, set fire to said house of Jacob Preager, and that by reason of said act of said defendant, Charles Jones, in setting fire to said house said Philip Preager was burned and died therefrom, and that said act of said defendant was reasonably calculated to kill said Philip Preager, then find said defendant guilty of murder iu the second degree, and assess his punishment by confinement in the State penitentiary for any length of time not less than five years.” In view of the fact that appellant was charged with murder committed iu the perpetration of the crime of burglary, we think the charge above quoted contained all the demands of the law, and that he (appellant) was without complaint that the court did not give a more detailed definition of the offense of burglary.
Complaint is also made of the court’s charge in submitting express malice, on the ground, as claimed by counsel for appellant, that there is no evidence of express malice in the record. While we dó not accede to this view, still inasmuch as appellant was acquitted of murder in the first degree, the charge on express malice, even if erroneous, could furnish him with no just cause of complaint.
Again, it is contended the court should have charged on accidental burning and unintentional homicide. We do not think this issue is
raised by the evidence. The entry and burglary of the house was shown to be premeditated, and that the cash drawer was rifled, and there is nothing, as we read the record, to even suggest that the burning of the house was accidental and not purposeful.
Again, it is contended that the court erred in not charging the jury on the subject of alibi. In this connection, it may be stated, that the testimony of appellant distinctly raises the issue of alibi, and there was direct testimony to the effect that he was not present at the house at the time when the fire was discovered, and it is strongly asserted and suggested by this testimony that he (appellant) did not set fire to the house. On the other hand, the testimony of Mrs. Preager unequivocally and distinctly identifies him (appellant) as being in her room at the immediate time when the house was discovered to be on fire. While contradicted somewhat by one witness on this issue, her testimony of identification is positive and complete. In this state of the record, the court gave the following charges: “If defendant did not break the house of the said Jacob Preager and set fire thereto, he would not be guilty of the offense charged, and if you so find, or if you have a reasonable doubt thereof, find him not guilty." Again, the court charged: “The defendant is presumed to be innocent until his guilt is established by legal evidence to your satisfaction beyond a reasonable doubt and if you have a reasonable doubt of the defendant’s guilt, find him not guilty." It is well settled in this State by repeated decisions of this court that the defense of alibi is sufficiently embraced in a general charge to the effect that a defendant is presumed to be innocent until his guilt is established by competent evidence beyond a reasonable doubt where no additional instruction is requested more explicitly amplifying the law upon that subject. Oxford v. State,
32
Texas Crim. Rep., 272; Davis v. State, 14 Texas Crim. App., 645; Ninnon v. State, 17, Texas Crim. App., 650; McAfee v. State, 17 Texas Crim. App., 131; Ayers v. State,
21
Texas Crim. App., 399; Hunnicutt v. State, 18 Texas Crim. App., 498, and Quintana v. State,
29
Texas Crim. App., 401. In this case the court not only gave the usual and proper charge on the subject of reasonable doubt, but in express terms instructed the jury that, if appellant did not break the house and set fire to it, or if they had a reasonable doubt as to whether he did so, thejr would find him not guilty. This was all that the court was required to do.
We have gone carefully over the facts of the case, and think same clearly point to defendant as being guilty of the. murder of Philip Preager, and believing there was no error committed on the trial of the case, the judgment of the court below is accordingly affirmed.
Affirmed.