When we wrote in this case originally, reversing same because of what we deemed an error in the charge of the court, our attention was not called particularly to the fact that there was no exception taken to this part of the charge of the court upon the trial. An examination of the record discloses an entire failure on the part of appellant to except to any particular part of the court's charge as given. Of the seventeen grounds of exception presented to the court before the charge was read to the jury, only one is affirmatively aimed at any part of said charge, and the remaining criticisms are of the court's failure to submit various matters set out therein at length. No exception was leveled at any paragraph or particular part of the charge, nor was the court's attention called to any omission or misstatement in any part thereof. In order to be sufficient under the law of 1913, — Arts. 735-743 of our Code of Criminal Procedure, an exception must be directed at some portion of the charge with such particularity as to enable the trial court to perceive and correct the supposed error. Boaz v. State,89 Tex. Crim. 515; Richardson v. State, 91 Tex.Crim. Rep., 239 S.W. Rep., 218; Williamson v. State, 74 Tex. Crim. 293. The Boaz case, supra, is almost entirely parallel with the instant case, the court's opinion therein holding that a charge on self-defense based on threats which omitted an immediate application of the doctrine of reasonable doubt, was not reversible error, the charge elsewhere containing the application of said reasonable doubt to the whole case; on rehearing this point was elaborated and the court's position on original opinion upheld after careful examination of the authorities, including Johnson v. State, 29 Texas Crim. App., 150. The purpose of the law requiring charges to be submitted to counsel for both sides before argument, and a reasonable length of time given in which to take exceptions and present objections thereto, was to require that objections be made thereto with sufficient particularity to point out erroneous statements and enable the trial court to correct same, or to enable counsel for the appellant, after presenting such exception, to prepare and present special charges supplying the omissions in the main charge or correcting erroneous statements therein. Judge Hawkins in the Richardson case, supra, *Page 483 with the approving statement substantially that it is one of the clearest enunciations of the proper construction of our present practice act on this subject, quotes from the Williamson case as follows:
"It was provided in that act that the charge before being read to the jury should be submitted to counsel and they must at that time present in writing any objections to the charge, distinctly specifying each ground of objection, and if no objection is made at that time, the case shall not be reversed because of errors in the charge, and if such objections are made we shall not reverse unless such errors were calculated to injure the rights of defendant, or unless it appears he has not had a fair and impartial trial."
As stated above, no exception having been taken to the court's charge pointing out any particular defect therein, we have concluded that the State's motion for rehearing is well founded. We may further observe that in various parts of the charge in the instant case the court presented the law of reasonable doubt. In paragraph 6 thereof wherein the law of the case is applied to the facts, the specific instruction is: "If you believe from the evidence beyond a reasonable doubt that the defendant . . . and not in defense of himself against an unlawful attack, real or apparent, . . . did unlawfully and with malice aforethought kill" etc. Further in said paragraph, in applying the law of reasonable doubt to the degrees of homicide, appears the following:
"You are further instructed that, if from the evidence you believe, beyond a reasonable doubt, that the defendant is guilty of some grade of culpable homicide, but you have a reasonable doubt whether the offense is murder or manslaughter, then you must give the defendant the benefit of the doubt, and in such case if you find him guilty it could not be of a higher grade of offense than manslaughter, and you will state in your verdict of what offense he is found guilty."
Again the court instructed the jury on reasonable doubt in applying the law to the facts as applicable to manslaughter. Also further in the charge we find the following:
"In all criminal cases the burden of proof is on the State. The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and in case you have a reasonable doubt as to the defendant's guilt you will acquit him, and say by your verdict `No Guilty'", which applies the law of reasonable doubt to the whole case.
In McCall v. State, 14 Texas Crim. App., 363, we find the following:
"Upon the subject of a reasonable doubt, we think the charge of the court was sufficient. We do not understand it to be required that this charge upon reasonable doubt shall be given in regard to an affirmative, independent defense, as contended for by counsel, nor do we understand the cases cited by him as supporting that proposition. *Page 484 We think the demands of the law have been complied with when the jury are told that if, from the evidence, they entertain a reasonable doubt of the defendant's guilt, they will acquit him. Where an offense consists of different degrees, a charge giving the defendant the benefit of a reasonable doubt between the degrees would be proper, and it would be error ordinarily in such case to refuse such a charge when requested; but, in a case like the present one, the court having given the defendant the benefit of a reasonable doubt with reference to the whole case, we do not think it was error to refuse the charges requested by defendant."
In Ashlock v. State, 16 Texas Crim. App., 23, occurs the following:
"By the charge the jury were instructed that, if they had a reasonable doubt of the defendant's guilt, arising from the evidence in the case, they should acquit him. This was sufficient. It was not required that this instruction should be given with reference to every or any particular phase of the case. (McCall v. The State, 14 Texas Ct. App. 353[14 Tex. Crim. 353].) There was no error, therefore, in refusing the special charge requested by defendant."
In Farris v. State, 55 Tex.Crim. Rep., Judge Davidson writes as follows:
"The charge of the court is critized because it failed to charge that if the jury should have a reasonable doubt that the animal claimed to have been sold by appellant to the purchaser was the animal claimed by Hamilton, they should acquit. The court gave a general charge on reasonable doubt, and also instructed the jury that they must find the animal belonged to Hamilton before the could convict. The charge as given under the facts of this case sufficiently presented the question referred to in appellant's exception."
In Eggleston v. State, 59 Tex.Crim. Rep., will be found the following:
"It is also contended that in charging the law of self-defense the court required the jury to believe that he acted in self-defense at the time he shot and killed, and if they so believed they would acquit the defendant. Now, in paragraph 21 of the court's charge, in charging on self-defense the court stated that appellant would be justified by law if he killed the party, if the party at the time was making an unlawful and violent attack upon him in a manner which produced a reasonable expectation of death or fear of some serious bodily injury, and that a reasonable apprehension or fear of death or some serious bodily injury would excuse a party in using all necessary force to protect his life or person, and that there was no necessity of it being actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him, nor was it necessary for appellant to retreat in order to avoid the necessity of killing his assailant; and the court further says: `If from the evidence you believe that defendant, E.L. Eggleston, killed Woody Clancy, but *Page 485 further believe at the time of so doing Woody Clancy had made an attack on him, which, from the manner and character of it, and considering the instrument used, caused Eggleston to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, the defendant Eggleston killed Woody Clancy, then you will acquit the defendant.' It will be seen that this charge was followed in paragraphs 23 and 24 by the doctrine of reasonable doubt and the presumption of innocence, and that the reasonable doubt was to be applied to the different degrees after defining the different degree and applying reasonable doubt to the different degrees, they were then told if they had a reasonable doubt of the guilt of defendant they would acquit him. The complaint of the charge was that the court should have told the jury that if they believed defendant shot in self-defense or had a reasonable doubt thereof, they would acquit. Had the court omitted in his general charge to have submitted the doctrine of reasonable doubt there would have been some force in appellant's contention, but the court told the jury that if they had a reasonable doubt of defendant's guilt they would acquit, and if they believed that what he did he did in self-defense, they would acquit. It is not necessary for the trial court in submitting the different issues raised by the testimony to couple on to his charge the question of reasonable doubt on every issue. An inspection of the charge will show that the court in this case applied the doctrine of reasonable doubt to the guilt of the defendant as well as to both the degrees of culpable homicide of which appellant could be convicted under the charge of the court. This ground of the motion is without merit."
See also as announcing the correctness of the proposition that in most cases it is sufficient to apply the doctrine of reasonable doubt to the whole case, McCullough v. State, 23 Texas Crim. App., 636; Powell v. State, 28 Texas Crim. App., 398; McCoy v. State, 32 Tex.Crim. Rep.; Jones v. State, 45 S.W. Rep., 596; Wallace v. State, 97 S.W. Rep., 1051; Edens v. State,41 Tex. Crim. 526. The Johnson case, 29 Texas Crim. App. 150, referred to in our original opinion, was decided before our present practice act became a law, but it appears from the opinion in said case that an exception was directed at the particular paragraph of the charge complained of. The omission to couple an instruction on reasonable doubt with the instruction on self-defense, when not specifically excepted to in the manner now required by law, has never been held reversible error within our knowledge when the charge on reasonable doubt is otherwise sufficient. No exception having been taken, we need not further discuss the proposition that appellant's rights were fully protected by the general charge on reasonable doubt and the other references thereto, in said charge above mentioned. *Page 486
Believing upon mature reflection that we were in error in directing a reversal, the State's motion for rehearing will be granted, the reversal set aside and an affirmance ordered.
Affirmed.
ON REHEARING. January 23, 1924.