Appellant urges that this court was in error in holding that the lower court did not err in overruling his motion for a continuance. We have considered this question again and find nothing to change our views. It was decided correctly in the original opinion.
Appellant also urges so earnestly, forcibly and vigorously that the court erred in not sustaining his complaint to the 12th subdivision of the court's charge, that we have concluded to discuss this question further.
His complaint to this paragraph of the court's charge is contained in the 11th ground of his motion for new trial and we quote it in full: "Eleventh: The court committed an error in paragraph 12 of his charge to the jury in this, in applying the law to the facts of the case on murder in the second degree, the court authorized the jury to convict the defendant of murder in the second degree if they found and believed from the evidence that the defendant struck Tom Crutchfield with a gun and said gun in the manner in which it was used was likely to produce death or even serious bodily injury, and that said striking was in a transport of passion, and said stroke killed the deceased thereby eliminating malice, and the fact of an unlawful killing, and also the intention to kill, and authorizing a conviction *Page 479 of murder in the second degree if the instrument used was such an instrument as would inflict serious bodily injury; and further said paragraph also authorized a conviction of the defendant irrespective of the time, and the place of the commission of said offense."
The 12th subdivision of the court's charge is quoted in full in the original opinion. It is unnecessary to quote it here again. Appellant's points now against this charge are that that specific submission of the charge did not require the court to find that the killing was unlawful and that it was intentional. And to that feature of the court's charge which submitted to them the character of the instrument with which the fatal wound was inflicted, as one only reasonably calculated to produce serious bodily injury.
In discussing these question we may restate some of the general propositions laid down in the original opinion, but if so, it is for the purpose of making clear our decision.
Judge White in his Annoted Procedure states, and cites the cases therefor, certain principals with reference to the correctness of a charge, thus: "The charge must be framed and is to be considered with reference to the facts of the case." Again, "the charge is tested with reference to the evidence adduced at the trial and its sufficiency is determined by the applicability to the evidence." Again, "the charge of the court should be based upon and be pertinent to the evidence." Again, it is elementary and established by all the authorities, that it is not proper to point out and consider objections to a single paragraph, word, or sentence in a charge, but the whole of the charge on the subject must be considered together in passing upon any criticism of any portion thereof.
Again, the statute, Code Criminal Procedure, in articles 735 to 742, inclusive, lays down rules prescribing what the charge of the court shall be and what it shall not be. Then in article 743 prescribes: "Whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant * * *"
Bearing these rules and statutory enactments in mind, and the evidence adduced on the trial of this case, which, on these several points was substantially and practically fully stated in the original opinion, we take up and discuss the several objections of appellant to said charge.
The first is he claims that in said subdivision twelve of the court's charge, the jury are not required to find specifically that the killing was unlawful. In considering this question it is necessary to know what defense appellant had. We find, upon a careful consideration of the record, that his main defense was that he was not guilty and that he did not do the killing, and that someone else did the killing. The court, on this point, as said in the original opinion, specifically and *Page 480 pointedly told the jury that if some one else other than appellant killed the deceased, to acquit appellant. No complaint is made of the submission of that question by the court. The jury by their finding specifically found that no one else did the killing, but that appellant did. The appellant did not claim in that court, or this, that the killing was done by him in self-defense or in defense of another, or of his property. No such defense has been intimated. Neither did he claim then nor does he claim now that the killing was accidentally done by him. If either of these questions had been contened for by him in the court below and there had been evidence to sustain them, without doubt, the court below would have submitted both or either issue to the jury for a finding, but as neither was set up and no evidence of either, the court did not, of course, submit the questions. It may be that the evidence raised the issue of manslaughter, but if it did the court fully submitted that question to the jury of which there is no complaint whatever and the jury found that issue against him. There is no claim in this court and there was none in the court below that the killing of the deceased was in any way justifiable. The killing of the deceased was unquestionably established. That it was by appellant is also unquestionably established and the jury so expressly found, as stated above, when the question was submitted to them. Then there being no question of justifiable homicide raised by the evidence, and as murder in the first degree was not found, necessarily the killing was an unlawful one. There was no getting away from this. It could not legally in any way have been gotten away from. Then we are driven to the conclusion, under article 743, above quoted, that no injury whatever has occurred to appellant because the court did not specifically, in section twelve of his charge, require the jury to believe that the killing was unlawful. But we do not rest our opinion solely upon this question. We think, taking the charge as a whole and even those sections of it, Nos. 10 and 11, the question of whether or not the killing was unlawful was actually submitted to the jury by the court, and the jury could not convict the appellant without finding that the killing was unlawful under the terms of the charge as a whole. We think it unnecessary to again point out the specific points in these charges of the court whereby the court in submitting them in substance and in fact required the jury to believe that the killing was an unlawful one before they could convict appellant.
In the well considered case of Puryear v. State, 56 Tex. Crim. 231, this court fully discussed and decided this question. As was said in that case, so we say in this: "The jury were in terms told that in order to constitute murder in the second degree, malice must exist, and further, that implied malice was inferred, or such as the law imputes to the act and fact of an unlawful killing. * * * It is certain, if one kills another intentionally, under circumstances not amounting to murder in the first degree, or such as would reduce the *Page 481 grade of offense to manslaughter, and same is not in self-defense, it is unlawful." Again, "* * * It is not believed that the mere omission in a particular paragraph to require the killing to be unlawful, or upon malice, would vitiate what would be otherwise a proper charge where the facts required to be found, both as a matter of law and as a matter of fact, would make the killing unlawful and stamp it inevitably as of the grade of murder in the second degree." This Puryear case has many times been cited and approved by this court.
What we have said about the charge in this case, as to requiring the jury to believe that the killing was unlawful, is equally applicable and just as appropriate to the other feature of the charge complained of, that while it did not, in the paragraph complained of require a specific finding that the appellant intended to kill the deceased, yet when the whole charge is considered it did in substance and in fact so require. Besides this, as said by Judge White in section 74 of his Annotated P.C., "A man is always presumed to intend that, which is the necessary, or even probable consequence of his acts, unless the contrary appears," citing McCoy v. State, 25 Tex. 42 [25 Tex. 42]; Aiken v. State, 10 Texas Crim. App., 610; Lane v. State, 16 Texas Crim. App., 172; High v. State, 26 Texas Crim. App., 546; Wood v. State, 27 Texas Crim. App., 393; Hatton v. State,31 Tex. Crim. 586; Shaw v. State, 34 Tex.Crim. Rep..
Again, as he says in section 77: "If the weapon, or means used by the assailant, were calculated to effect the purpose of murder * * * or serious bodily injury, it is an absolute presumption of law that it was the intention of the assailant to effect the purpose indicated; and, the presumption is imperative upon the jury as well as courts, and when applicable must be given in charge to the jury;" citing Kendall v. State, 8 Texas Crim. App., 569; King v. State, 13 Texas Crim. App., 277; Lane v. State, 16 Texas Crim. App., 172; Jones v. State, 17 Texas Crim. App., 603; Pierce v. State, 21 Texas Crim. App., 541; Cochran v. State, 28 Texas Crim. App., 442; Ward v. State, 30 Texas Crim. App., 687; Skaggs v. State, 31 Tex.Crim. Rep. and Hatton v. State, supra, and Shaw v. State, supra.
We are not discussing, and do not hold in this case, that it would not have been proper for the court in this subdivision 12 of his charge to have required the jury to believe that the killing was both unlawfully and intentionally done, pointedly in this paragraph. In our opinion it would probably have been better for the court to have embraced both of these matters in this paragraph of his charge. We are discussing the question of whether or not the omissions of these terms in paragraph 12, taken in connection with all the other charge of the court and the evidence of the case, was reversible error. Probably, if self-defense or accidental killing had been shown, or there had been any evidence tending to show either of these matters, or had the appellant testified, or had there been any other testimony showing or tending to show that he did not kill the deceased intentionally, then *Page 482 a different question might have been raised. But as there was no such defense and no such testimony, it is our opinion even if it could be held that the charge as a whole did not specifically require the jury to find as a prerequisite to appellant's conviction that the killing was unlawfully and intentionally done, that such omissions, under the terms of said article 743, Code Criminal Procedure, show no such injury as would justify this court to reverse this case. For the same reasons it is our opinion that no injury whatever is shown to the appellant by the court in the charge complained of using the language "or serious bodily injury" in connection with the charge wherein he said, in speaking of the instrument with which the killing was done "was an instrument reasonably calculated to produce death or serious bodily injury." In our opinion none of the grounds of complaint of the charge of the court by appellant under the circumstances of this case could have materially injured appellant's rights.
Appellant has cited and relies upon several decisions of this court wherein this court has held in those cases that the omissions complained of in the charge of the court above discussed were reversible error, but in our opinion each of those cases so held, because therein the question of an unlawful and an intentional killing was expressly raised by the evidence and defenses specifically set up therein and we think they are clearly distinguishable from this case. For the first time the question is suggested, appellant, in his motion for rehearing herein, attaches the affidavits of two jurors which were sworn to before one of appellant's attorneys claiming that the jury fixed the penalty in this case by each juror setting down the number of years he thought appellant should be confined, adding them all up and dividing by twelve and in that way fixed the number of years appellant was to be confined. It is claimed that appellant did not find this out until some eight months after the trial in the court below and then by accidentally finding some figures on slips of paper in the jury room at that length of time after the verdict. These affidavits are made before appellant's attorney, as stated. This court, through Presiding Judge Davidson, in Maples v. State, 60 Tex.Crim. Rep., specifically held that such an affidavit could not be considered even in the court below when made in time for that court to act thereon. That decision has been adhered to ever since by this court. Patterson v. State, 63 Tex.Crim. Rep., and cases cited. This court can not consider that matter as an original proposition here, even if it had been raised, or attempted to be raised in this court by a proper affidavit.
The motion for rehearing is overruled.
Overruled. *Page 483