Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of fifteen years; hence this appeal.
Appellant assigns as error the action of the court in swearing the jury, his contention being that the indictment charged J.C. Clark with the commission of the offense and the jury were sworn to try J.C. Clark; that afterwards when defendant was arraigned he corrected his name, stating that he had no middle initial; that his name was Joseph Clark; and the indictment, under the direction of the court, was accordingly amended; that thereafter the jury were not resworn to try Joseph Clark, but tried him under the oath already taken to try said J.C. Clark. There is nothing in this contention. The identity of appellant was the same. The middle initial was an immaterial matter and subject to amendment. Art. 549, Code Com. Proc., provides that when arraigned a defendant may suggest his true name, if it is not given in the indictment, and the cause then proceeds as if the true name had been first recited in the indictment.
Appellant also complains of the charge of the court in defining implied malice. The definition here given is in accordance with the approved forms, and is not subject to the criticism of appellant.
Appellant also contends that the court's charge on manslaughter is on the weight of the evidence, in that it singles out certain portions of the evidence as bearing on appellant's mind at the time of the homicide; and in that it left these matters to be determined by the jury, when it was the duty of the court to have directly told the jury that the evidence showed the existence of such conditions. After the court had defined manslaughter, and had given the jury the law of manslaughter as applicable to the facts, he then charged the jury as follows: "You are to determine from the evidence the state of mind of the defendant when he shot and killed the deceased (if he did so), and in that connection you may consider threats (if any) made by the deceased regarding the defendant, the reputation of the deceased (if such it was) as a violent and dangerous man, the defendant's personal knowledge (if such he had) that the deceased was a violent and dangerous man, the relative strength *Page 460 of deceased and the defendant, and all other facts in the case that may shed any light upon such state of mind." With reference to the first objection urged, that the court singled out certain things indicating appellant's state of mind, we would observe that the charge appears to include such matters as were in evidence as indicating appellant's state of mind, and then told the jury to consider in connection with such facts all other facts in evidence that might shed light upon such state of mind. It does not occur to us that appellant can complain of this charge. The contention that the court in said charge left the jury to determine the facts, is equally without support. We understand that it is the duty of the court to leave the facts to be found by the jury, and this is exactly what this charge does. Besides, this is a charge on manslaughter, and if the court had assumed the existence of certain facts that were in issue, and so instructed the jury, such a charge might have trenched on appellant's right of self defense. We see no error in this charge.
As we understand appellant's motion for new trial, no other exceptions were taken to the court's charge on manslaughter, or the failure of the court to charge some other phase of manslaughter, than was submitted to the jury in this case.
Appellant assigns as error the action of the court failing to charge on mutual combat. There is testimony in the record tending to show mutual combat, and the court might well have submitted a charge on this phase of the case to the jury; but it would have been a charge against appellant, and of this he can not complain.
Appellant further contends that the verdict of the jury is contrary to the law and the evidence. We do not agree to this contention. If the jury agreed with the State's theory of the case, they could find defendant guilty of no less offense than murder in the second degree. If, on the other hand, the jury believed appellant's version they should have found him not guilty, as his testimony made a case of self-defense. However, they saw fit to believe the witnesses for the State, and we see no reason to disturb their verdict. The judgment is affirmed.
Affirmed.