Appellant was indicted, charged with assault to murder, convicted and his punishment assessed at two years in the penitentiary.
A state of facts out of the ordinary is presented by this record from the State's standpoint. No motive or suggestion of a reason for the shooting is shown unless it can be attributed to just a wanton act. Ray Wallace says he was crossing a bridge on his way home, when he saw appellant and another negro approaching the bridge horseback. That when they saw him they turned back, and he holloed to them to come on that he was not going to bother them; that they did come on and when they got about even with him, appellant shot at him twice, one ball entering his shoulder and running downward, and after doing so the negro rode on. He testifies no ill will, nor animosity existed between them.
The negroes, in substance testify the same thing as the prosecuting witness until they start across the bridge; they say when they got even with the prosecuting witness, that Wallace said, "Halt," reaching for the bridle of his horse, "give me your money," when appellant fired twice and rode on.
The jury did not believe the statements of the negroes, and found appellant guilty, and this leaves the record with an unexplained assault. On this issue the court charged the jury: *Page 100
"You are further charged in this connection that if you believe from the evidence that Ray Wallace was advancing toward the defendant or was reaching for defendant's horse and demanding defendant to give up his money or words to that effect, and under such circumstances the defendant shot the said Ray Wallace, then he was justifiable, and if you so find, you will acquit the defendant, or if upon this point you have a reasonable doubt you will acquit defendant."
Thus the defense presented by the evidence offered in behalf of defendant was put fairly before the jury; in addition to this, the court charged on self-defense from the appearance of danger, as it appeared to defendant at the time, and the charge in every sense of the word was as favorable to defendant as the evidence would justify.
In one bill of exceptions it is shown that the court permitted witnesses to testify that the clothing worn by the prosecuting witness on the night he was shot, were not powder burned. In this there was no error. It was an issue in the case as to how close prosecuting witness was to appellant when the shots were fired, and this testimony was admissible as bearing on that issue. The shooting is alleged to have taken place in October, 1910, while this trial did not take place until March, 1912, and it was not necessary to produce the clothing worn on that occasion.
The prosecuting witness was permitted to testify that after he was shot he turned his horse loose, believing the horse would go home, and his people would come and get him. This evidence could not have been detrimental to defendant, as the attending physician had testified to the nature and character of the wound inflicted.
These are the bills in the transcript, and while in the statement of facts it is shown other exceptions were reserved to the introduction of testimony and the court in approving same, approves the exceptions therein reserved, yet, in the statement of facts it is shown that defendant was granted the privilege, when preparing the bills, to state the grounds of the objections. As no bills were prepared, and no grounds of objection stated at the time the testimony was objected to, but it only being stated that defendant "objected" in some instances and at other times it is stated that such testimony was irrelevant and immaterial, the matter is not presented in a way we can review the question of admissibility of such testimony.
The question of the sufficiency of the testimony, to us presents a serious question, and one whether the testimony of the State's witness would support the verdict of the jury. It has been the uniform holding of this court, that in the absence of motive being shown, and the killing or shooting is without excuse or justification and is unexplained, the law implies malice. The State's testimony shows no motive or explanation other than a wanton and wilful act without excuse or justification; the defendant's testimony shows a perfect defense, nothing to mitigate, but absolute justification. Yet, the judge submitted this defense, fairly and fully, and the jury by their verdict found it *Page 101 untrue, and there is nothing in the record to suggest that the verdict is due to passion or prejudice, and under such circumstances, we have been frequently called on to pass on how far we are permitted to invade the province of the jury, and substitute our judgment as to the weight of the evidence, and it seems to be the rule, that if there is evidence to support the finding of the jury, and there is nothing in the record to cast a doubt on that evidence, other than that the evidence offered in behalf of defendant appeals strongly to our judgment, we are not permitted to disturb the verdict. To us the evidence offered in behalf of defendant seems to predominate in favor of the theory advanced as a justification, but the law was clearly stated to the jury, and they viewed the matter differently. Under such circumstances, our province being merely to see that the case is tried fairly in accordance with the rules of law, and to only disturb the verdict on account of evidence only when there is no testimony to support it or the testimony is insufficient to overcome the presumption of innocence, or is so vague or contradictory that no reasonable mind would be justified in reaching such conclusion, the judgment is affirmed.
Affirmed.
ON REHEARING. June 28, 1912.