The offense is murder; punishment fixed at confinement in the penitentiary for a period of five years.
The State's theory, as developed from the evidence, is this: Benigno Munoz entered the store of Julian Solis. Gregorio Reyes was present on the outside of the store. Appellant entered, and after making a small purchase, said to Munoz: "Excuse me, I want to talk to you." The two left the store together. A few minutes later, Solis heard a pistol fire. Upon running to the door, he saw Munoz and the appellant scuffling. The witness spoke to them and they separated, going in different directions. It was dark and the exact position of the parties was not discernible by the witness, though he saw their hands above their heads and heard one of them say: "Turn loose, give me the pistol." With these words one wrenched the pistol from the other and they separated. As Munoz was leaving, he said: "Now you will see, I am going to take this pistol and deliver it to the officers." Shortly thereafter appellant came to the witness and asked the whereabouts of Munoz. When he returned, the appellant was drunk and appeared to be angry.
Munoz had received a gunshot wound and died on the following day. He weighed about 185 pounds while the weight of the appellant was 140 pounds.
Reyes testified but threw no light on the transaction.
According to the witness Galvan, he passed the parties about twenty-five steps and heard Munoz say: "Turn loose the pistol, you s_n of a b___h." Appellant turned loose, and Munoz said: "I am going to deliver this to the authorities, you s_n of a b___h." He met Julian Solis and Gregoria Reyes, who said: "There goes Benigno Munoz; Emilio Posos shot him." About a block distant the witness saw the appellant and saw him jump over the fence of the cemetery and came towards the witness and demanded that he deliver the pistol. From the testimony of the witness, it seems that the *Page 56 appellant had a knife in his hand. He had been drinking but was "well on his feet."
The witness Lopez saw Munoz about eight o'clock at night and was told by him that he had been shoot by Posos. Lopez was a constable and Munoz gave him a pistol. Some of the chambers of the pistol were loaded.
Appellant testified that there had been no previous difficulty between him and the deceased; that upon entering the store of Solis he bought a package of tobacco and a bottle of mescal. He and Munoz went out together and drank of the mescal. Appellant offered to sell Munoz the pistol. Munoz grabbed it and said he had no money. Appellant demanded it and a scuffle ensued in which Munoz got possession of the pistol, and in the scuffle the pistol fired without any intent of the appellant that it should do so. He was not aware that Munoz was shot until the following day. Appellant said he had no intention to shoot Munoz; that they were good friends. After the departure of Munoz, appellant drank the remainder of the mescal and became unconscious from its effect.
The court instructed the jury upon the various issues of the case save that of manslaughter, which he gave in a special charge prepared by the appellant's counsel. The defense of the accidental homicide was, we think, fairly and adequately embraced in the court's charge. There was no error in refusing to repeat it in the special charge.
In the special charge upon the law of manslaughter which was prepared by appellant's counsel and given to the jury, the opening sentence was to the effect that if between murder and manslaughter any reasonable doubt existed in the minds of the jury, it should be resolved in favor of the accused. In view of this charge, we think the court committed no error in refusing to single out the question of the appellant's state of mind and tell the jury to resolve any reasonable doubt that might be entertained upon that subject in favor of the accused. This apparently would have been but a repetition.
Several of the bills of exception found in the transcript are but a transcription of the stenographer's notes in question and answer form. Among these are Bills Nos. 6, 9, 12 and 13. No permission of the trial court to so frame the bills is found in the record, and so far as we are able to discern, no reason existed for the departure from the statutory rule which requires the bills of exception to be in narrative form. These bills therefore cannot be considered. Art. 846, C. C. P.; Jetty v. State, 90 Tex.Crim. Rep.; Reese v. State,94 Tex. Crim. 220; Soderman v. State, 97 Tex.Crim. Rep.. *Page 57
In Bill No. 8 is embraced an objection to the sufficiency of the predicate for the introduction of a dying declaration which seems to have been attempted by the reproduction of the testimony of Miller who died since giving his testimony on the former hearing. It does not appear from the bill of exceptions that the dying declaration to which the predicate related was introduced in evidence; nor is its contents revealed by the bill. Neither is such information given by the statement of facts. The inability of this court to determine whether there was material error committed in laying the predicate is manifest. To appraise the effect of the ruling, it would be necessary that this court be informed of the nature and substance of the alleged dying declaration and to know that it was received in evidence.
From Bill No. 11 it appears that while the appellant was testifying in his own behalf, two questions were asked, the first being:
"The last time you testified in this cause, you testified that you had shot Munoz because you were defending your property, did you not?"
The other was:
"How do you explain the attack you made on Julian Solis with a knife?"
The objection made was that the questions were unfair in that appellant, one the former trial, had not testified that he shot Munoz in defense of his property, and no testimony had been given to the effect that the appellant had attacked Solis with a knife. These are but objections, not verified as facts; nor is the bill otherwise self-explanatory. It appears from the statement of facts that the case had been tried several times. Solis, an eyewitness, testified that on the night of the homicide and subsequent thereto, appellant came to him and said: "Hello, s_n of a b___h; where is Benigno Munoz? He further said: "I want to talk to you; come over here." They were separated by a distance of three or four feet. The witness saw in the hand of appellant what looked like a big knife. Appellant appeared to be angry.
Appellant testified upon the stand, detailing the circumstances of the encounter in which the deceased lost his life, affirming that the discharge of the pistol was accidental.
Responding to the first question propounded, appellant denied that he had ever testified that he shot Munoz in order to protect his property. The State did not impeach him upon that subject. Whether the record upon the former trial was in a condition to contradict him is not disclosed, but this record contains the appellant's unchallenged denial that he gave the testimony implied in the question to which the objection was addressed.
Appellant testified on direct examination that after the homicide, he became so intoxicated that he lost his mind. Having thus testified *Page 58 in detail as to the incidents of the homicide and claiming that after the homicide he became unconscious from the use of drink, we think it was not out of place that he was asked to explain his conduct towards the witness Solis. As stated above, in its recital of the surrounding facts, the bill is too meagre to unable us to value it, and for that reason it fails to show error. However, in looking at the facts, we are of the opinion that if the bill were complete, the result would be the same.
After giving the necessary definitions pertaining to the offense of murder in the first paragraph of the charge, the court, in the second paragraph, expressed himself thus:
"The instrument or means by which a homicide is committed are to be taken into consideration in judging the intent to the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears."
Exception was reserved to this paragraph and the appellant contends that it was prejudicial to his case.
In the third paragraph the jury was instructed, in substance, that if they believed beyond a reasonable doubt that the appellant, with a pistol and with the intent to kill, did unlawfully and with malice aforethought, shoot and kill the deceased, he would be guilty of murder. In the same paragraph is the following charge:
"Amongst other defenses set up in this case by the defendant is what is known as 'accidental homicide'. That is, that if the deceased was killed by a gunshot wound at the time and place alleged in the indictment, the shot which produced his death was discharged by accident and without any intention on the part of the defendant to inflict death upon the deceased, and that such shot was discharged while the defendant and the deceased were engaged in a scuffle or struggle over the possession of the pistol from which the shot was fired.
"You are instructed that a homicide occurring under such circumstances is accidental and such a homicide is not in violation of law and is entirely excusable and unintentional.
"Applying the foregoing principle and proposition of law to the facts in this case, you are instructed that if the evidence raises in your mind a reasonable doubt as to whether the shot which killed the, deceased (if he was killed by such shot) was accidentally discharged in the struggle over the pistol, or unintentionally fired by the defendant, then you will find the defendant 'not guilty' and so say by your verdict."
Under the terms of Art. 743, C. C. P., an error in the charge not calculated to injure the rights of the accused, who has otherwise had a fair trial, is not ground for reversal. See Vernon's Texas Crim. Stat., Vol. 2, p. 501, also p. 507. The charge given *Page 59 was in substance At. 11471, P. C. the design of which is to protect the accused. See Burnett v. State, 46 Tex. Crim. 116; Gallagher v. State, 55 Tex.Crim. Rep.; Andrus v. State, 73 Tex.Crim. Rep.. Even in a case where the evidence does not demand such a charge, the use of it is not necessarily harmful. See Campos v. State, 50 Tex. Crim. 104, and other cases to which reference is made in Dugan v. State, 86 Tex.Crim. Rep.. Much in point against the complaint of the charge is the opinion of this court, written by Presiding Judge Davidson, in McKenzie's case, 96 S.W. Rep. 932, in which the issues were not dissimilar from those in the present instance, and the writer of the opinion said:
"Viewed from the standpoint of appellant's testimony, that the killing was accidental, it occurs to us this charge was favorable, because the jury were instructed there could be no presumption against him arising from the use of the weapon in regard to the death of the party, unless from the manner in which it was used such intention evidently appears. This it occurs to us would throw the burden of proof upon the State to show the facts which made his intention evident from the facts introduced and protect him in regard to his accidental theory."
In the opinion of this court, taking into account the evidence in the present case, the paragraph of the charge under discussion might well have been omitted, but tested by the same rule, especially in the light of the authorities mentioned, we do not regard the charge as harmful.
The State's evidence, if believed, is deemed sufficient to support the verdict. If the appellant intentionally killed the deceased, the law would imply malice aforethought in the absence of an explanation sanctioned by the jury such as would excuse the homicide or mitigate the offense. The only defense was that of accidental or unintentional shooting. This the jury rejected and accepted the conflicting theory of intentional killing.
The evidence is regarded sufficient to support the verdict, and in the procedure we have found no such fault as would authorize a reversal of the judgment. It is therefore affirmed.
Affirmed.
ON MOTION FOR REHEARING.