The extreme penalty of the law was given appellant by the jury under a charge of murder. He discusses two errors as grounds for reversal: first, the court's charge defining malice and murder; second, in sustaining State's challenge for cause to three jurors who stated on their voir dire they had conscientious scruples in regard to inflicting the death penalty in a case of circumstantial evidence. The definition of murder in both degrees and malice express and implied are given in the stereotyped form, such as has been held by the decisions of this State to be proper. The criticism seems to center itself upon the following excerpt from the charge: "You are further instructed that implied malice is that malice which the law infers from or imputes to certain acts; that is to say, if the fact of an unlawful killing is established by evidence beyond a reasonable doubt, and there are no facts or circumstances in evidence which establish express malice, and none which tend to justify, mitigate or excuse the killing or which reduce the same to manslaughter, then the law implies malice, and such killing would in that event be murder in the second degree." The court nowhere defines manslaughter, adequate cause or sudden passion. It is urged that because the court did not define manslaughter, the definition of murder in the second degree is not sufficient, and we are referred to Thomas v. State, 7 Texas Ct. Rep., 818. That case is not in point. The court in this case did not instruct the jury that murder in the second degree was a killing on a sudden transport of passion without adequate cause, nor was it necessary that such a charge should have been given. There are no facts upon which to predicate passion of any sort, either with or without adequate cause The deceased was shot in his wagon in the back by appellant or Jordan Thompson, or both. There were no facts calling for a charge on passion with or without adequate cause, and we are led to believe the reason the court gave in charge murder in the second degree was by reason of the fact that it was a case of circumstantial evidence. There were no witnesses to the homicide except the perpetrators. The jury could not have possibly been misled or the defendant's legal rights in any way *Page 32 jeopardized by omitting all allusion to manslaughter. As applicable to the facts of the case we believe the court's charge is correct; and it is only to the facts we can look in determining the legality or illegality of a charge.
In regard to the exception in the court's action permitting the county attorney to challenge three jurors who had conscientious scruples against inflicting the death penalty in cases of circumstantial evidence, we say that the ruling is correct. Bills of exception show that each juror when questioned on his voir dire stated he had no conscientious scruples about inflicting the death penalty. This was in reply to the general question. The county attorney then asked if they would inflict the death penalty in case of circumstantial evidence, or did they have conscientious scruples in regard to inflicting the death penalty in cases of circumstantial evidence. Each answered they had such scruples. Whereupon the court sustained the cause for challenge. This ruling was correct. Franklin v. State, 51 S.W. Rep., 951. The statute does not limit the cause of challenge upon this ground to cases of positive or direct evidence. It applies with equal force to cases of circumstantial evidence, and the State is as much entitled to have the jury free of conscientious scruples in regard to inflicting the death penalty in cases of circumstantial evidence as in cases of direct or positive evidence. There are also some bills of exception to overruling cause of challenge urged by appellant to certain of the jurors claimed by him subject to cause for challenge on account of having a conclusion established in their minds as to the guilt or innocence of defendant. These bills fail to show whether the jurors were peremptorily challenged or whether they sat upon the jury. Presumably they were peremptorily challenged and were not upon the jury, for the court certifies that he extended to appellant three additional peremptory challenges. The bills do not show any error. No objectionable juror is shown to have been on the jury.
It is also urged that the evidence is insufficient to support the conviction. As before stated, while the evidence is circumstantial, still it is of a very cogent character. Whoever committed the homicide is guilty of murder in the first degree, and the facts tend most cogently to show appellant did the killing. The defense sought to cast the killing upon Jordan Thompson. He was used as a witness upon the stand, and proved an alibi, which was corroborated by other witnesses. Appellant admits practically that the killing was done with his pistol. He states himself, as did the other witnesses, that he was riding in the wagon with deceased for some distance and shortly before the homicide. He testified that he got out of the wagon and that Jordan Thompson borrowed his pistol. Statements of appellant were introduced showing that while he was with Thompson that Thompson shot deceased from ambush from a cane patch. The killing was for the purpose of robbery and evidently well planned. We are of opinion that the evidence sustains the conviction, and the judgment is affirmed.
Affirmed. *Page 33
ON REHEARING. November 30, 1904.