The appeal is from a judgment condemning the appellant to confinement in the penitentiary for a period of five years for the offense of murder.
Using a shotgun loaded with small shot, the appellant shot and killed Hobson Sullivan, a youth fifteen years of age. The shot was fired at night-time when the deceased and his companion, a boy thirteen *Page 344 years of age, were in a watermelon patch belonging to the appellant.
According to the State's evidence, the deceased and his companion went to a church where religious services were about to begin and agreed to go together to the appellant's watermelon patch and get some watermelons. They entered the enclosure at a point about 400 yards from the appellant's dwelling-house. When Sullivan stooped down to thump a watermelon, the appellant arose and said: "Oh, yes, God damn you, you are in my melon patch, and I am going to kill you!" The companion ran and as Sullivan arose to his feet to run away, the appellant shot him.
Evidence of declarations by the appellant showing a specific intent to kill were introduced in evidence. According to the appellant's version, a few days prior to the homicide, some unknown person had made depredations upon his watermelon patch, and a number of his choice melons marked "seed" were taken. He found and identified the rinds of five or six melons, and rinds of one or more melons not marked "seed" were found some three-quarters of a mile from his home on which were scratched some vulgar words.
The appellant, with his wife and boy, went to church on the night of the homicide, which was not far from his home. Soon after the beginning of the services, the conduct of some boys indicated that they were going into his watermelon patch. He went to his home and while there saw two boys at his well. He invited them to come in and have some watermelon, but they ran off, using some ugly words in their flight. He took a cushion, a quilt and a shotgun and went to a point in his cotton field near the melon patch. While waiting there he saw two persons approaching. When the deceased and his companion had come near him, appellant said to them: "It looks like you boys are going to tote them all off; get out." One of the boys ran. The other "turned his face toward me and made one or two steps."
Appellant said: "It excited me, and I went all to pieces." When the boy advanced one or two steps, the shot was fired. Appellant disclaiming any intention of harming any one at the time he got his gun and went to the melon patch. He said that if both boys had run he would not have fired.
The date of the offense was laid in 1916. The indictment was presented in April, 1922.
The court instructed the jury on the law of murder and self-defense and explained to the jury that the appellant had a right to protect his property and also to defend against any act or demonstration which, as viewed from the standpoint of the appellant, reasonably appeared to seriously endanger his life, person, or his property. The law of manslaughter was also defined in an adequate and proper manner. The law of aggravated assault, as well as simple assault, was likewise defined. The jury was informed that if a reasonable doubt *Page 345 as to the appellant's guilt of the offense of murder was entertained, he should be acquitted, although they might believe him guilty of one of the other offenses mentioned, inasmuch as the offenses of all grades lower than murder were barred by limitation. The statutes of this state prescribe the time within which the prosecution of certain offenses will be barred by the period of limitation. Article 228 of the Code of Crim. Procedure declares:
"An indictment for all other felonies may be presented within three years from the commission of the offense, and not afterward, except murder, for which an indictment may be presented at any time."
This article covers the offense of manslaughter and other lower grades of voluntary homicide. White v. State, 4 Texas Crim. App. 488; Temple v. State, 15 Texas Crim. App. 304; 49 Amer. Rep. 200; Moore v. State, 20 Texas Crim. App. 275; Fulcher v. State,33 Tex. Crim. 22. The decisions of this court are specific and uniform in holding that while an indictment for murder embracing lower grades of homicide may be prosecuted at any time, the right to prosecute for murder alone survives beyond the period of three years. In instructing the jury in the present case, the court followed the statutes and precedents as understood by this court.
Both the averment in the indictment and the evidence make it clear that the homicide took place more than three years anterior to the presentment of the indictment. Therefore, murder was the only offense embraced in the indictment of which the appellant could have been convicted. Assuming that there was mitigating evidence, adequate in a legal sense to reduce the grade of the offense, the propriety of informing the jury in appropriate language of the nature of the other offenses embraced in the indictment for murder and made applicable by the facts developed seems obvious. Such an instruction was necessary and desirable in order to protect the interest of the accused. It was favorable to him.
The statute permitting the jury to suspend the sentence of one convicted of a felony having no application to the offense of murder, there was no error in refusing to instruct the jury upon that issue. See Art. 865b, Code of Crim. Proc.
The court was right in refusing to instruct the jury that the killing of the deceased would have been justifiable if it had been committed for the purpose of preventing theft at night. Article 1105 of the Penal Code asserting such right has no application to the transaction under consideration. If the deceased was in the act of taking a watermelon from the farm of the appellant, he was not committing theft but a misdemeanor as defined by Article 1234 of the Penal Code. The case of Espalin v. State, 90 Tex.Crim. Rep., deals with the subject in these words:
"Our conclusion is that one who kills another while the latter is engaged in an act comprehended by the terms of Article 1234, supra, *Page 346 could not as a matter of law claim such act to be justifiable homicide, but this in nowise affects one's right to act in defense of property as given under Article 1107, Vernon's P.C."
Judge Lattimore, in writing the opinion, reviews the authorities and states the reasons upon which the conclusion is founded. A reiteration of these reasons in this opinion is deemed unnecessary. Suffice it to say that the ruling in the Espalin case, supra, is deemed sound and controlling of the point under discussion in the present appeal.
The judgment is affirmed.
Affirmed.
ON REHEARING. January 16, 1924.