It is urged by appellant in his motion for rehearing that the court's definition of murder was incomplete. The definition follows the exact language of the present statute. Art. 1256, amended by the 40th Leg. (1927), page 412, Ch. 274. Section 1 (Vernon's Ann. P. C., Art. 1256). It was not necessary for the court in such definition to explain when a killing would be excused or justified. He pertinently told the jury if the killing was in self-defense defendant could not be convicted. In other words, a killing occurring under such circumstances would be justifiable.
We can add little to what was said in our original opinion regarding the criticism of the charge defining malice aforethought. The charge in the present case is not distinguishable from that in Pruitt v. State, 114 Tex. Crim. 281,25 S.W.2d 870, which was expressly approved and many authorities cited to support the holding. On motion for rehearing in that case the same contention was advanced as is here made, viz: that the charge was confusing to the jury. Our holding on rehearing was against appellant's contention.
It is insisted that the court should have told the jury that the minimum punishment for murder with malice aforethought was five years. If the court had so instructed the jury it would have been in the face of the present statute. Article 1257 P. C. (amended 1927, 40th Leg., Ch. 274, page 412, section 1, Vernon's Ann. P. C., Art. 1257) fixes the punishment for murder at "death or confinement in the penitentiary for life, or for any term of years not less than two." No limitation is placed on the jury in fixing the minimum penalty of two years even though the killing be actuated by malice aforethought. The only limitation is in fixing the maximum penalty of five years in the absence of malice aforethought. See section 3a, c. 274, Acts 40th Leg. (1927) as amended by Acts 40th Leg. (1927) 1st Called Sess. c. 8, section 1 (Vernon's Ann. P. C., Art. 1257b). In Davis v. State, 110 Tex.Crim. Rep., 10 S.W.2d 116, we said: "The result of the changed definition of and punishment for murder was to clothe the jury with large discretion and tremendous responsibility to say that one who 'voluntarily' killed another should be punished by death or imprisonment in the penitentiary for as low a term as two years. Under the present law the only restriction placed upon the jury in fixing the punishment arises upon a finding by them that malice was absent when the voluntary killing occurred, or when from the whole case there exists in their minds *Page 464 a reasonable doubt as to whether the killing was upon malice, in which event the punishment must be fixed at not more than five years."
Appellant renews his criticism of the charge on self-defense. We have again examined it and fail to discover where under the facts it falls short of amply protecting appellant in all his legal rights.
There was no necessity for the court to instruct the jury that the fact of appellant having a pistol did not abridge his right of self-defense against an attack made on him by his wife. Appellant's right of self-defense was in no way restricted by the court's instructions. It is the settled law in this state that under such circumstances no such charge as is insisted on here is called for. Many cases are collated in Briscoe v. State, 90 Tex.Crim. Rep., 236 S.W. 991. See also Branch's Ann. Tex. P. C., page 1091, Sec. 1950.
Appellant insists that the verdict of the jury should have specified whether he was found guilty of murder with or without malice, it being further contended that without such a finding the verdict is too indefinite to support a judgment. Davis v. State, 110 Tex.Crim. Rep., 10 S.W.2d 116, is direct authority against the contention. See also Wright v. State,113 Tex. Crim. 297, 21 S.W.2d 507.
Believing proper disposition was made of the case in our original opinion the motion for rehearing is overruled.
Overruled.