Powell v. State

28 Tex. Ct. App. 393 | Tex. App. | 1890

Willson, Judge.

Several objections to the charge of the court are presented and insisted upon by counsel for defendant. As the conviction is for murder in the second degree, the charge upon murder in the first degree will not be considered.

It is objected that the definition given in the charge of “malice” is insufficient and erroneous. This court has repeatedly held to the contrary. Gallaher v. The State, ante, 247.

An exception to the charge upon murder in the second degree was reserved because the rule of reasonable doubt was not applied therein. It is true that in prosecutions for murder it'is proper that said rule should be applied as between the different degrees of homicide involved in the case. McCall v. The State, 14 Texas Ct. App., 353; Murray v. The State, 1 Texas Ct. App., 417. But if such an instruction be substantially given, though not in the precise language of the statute, and no special, instruction upon the point be requested, the charge will be held sufficient. Hodges v. The State, 6 Texas Ct. App., 615. In this case the. jury was instructed that in order to warrant a verdict finding defendant guilty of murder in the second decree, they must believe from the evidence, beyond a reasonable doubt, that defendant committed the homicide with malice implied, etc. We think this was substantially instructing as to the rule of reasonable doubt between murder in the second degree and manslaughter, and no additional instruction relating to this point was requested by the defendant..

With respect to the charge on threats and self-defense, the objection is urged that it requires the jury to believe that the facts existed which constituted self-defense before they could acquit defendant, whereas the law is that if they entertained a reasonable doubt of the existence of such facts they should acquit him. In this case the court charged the rule of reasonable doubt generally, making it applicable to the whole case, and under repeated decisions of this court this was sufficient. McCullough v. The State, 23 Texas Ct. App., 620; Ashlock v. The State, 16 Texas Ct. App., 13; Barr v. The State, 10 Texas Ct. App., 507. The cases cited upon this point by counsel for defendant are not in point, and do not sustain the objection urged by them. We are of the opinion that the charge on the issues of manslaughter, threats, and self-defense are applicable to the facts in the case, and are sufficient and correct.

■ Several special instructions were requested by counsel for defendant and were refused. We have given our attention to said instructions, and without discussing them, will say that in our judgment most of them are substantially embraced in the charge given by the court, and those not so embraced were properly refused because incorrect.

We find no error in the record for which in our opinion the conviction should be set aside. We think the evidence supports the conviction. We therefore affirm the judgment.

Affirmed.

Hurt, J., absent.