Appellant was indicted by the grand jury of Clay County, charged with murder. Upon a conviction being had of murder in the second degree, an appeal was prosecuted to this court, and the judgment reversed. The opinion will be found in volume 56, Texas Crim. Rep., beginning on page 480, and the evidence is there so fully stated we do not deem it necessary to restate it here.
Appellant again insists that the evidence is insufficient to support the verdict. We have carefully read the evidence, and under our law, it being incumbent on the jury to pass on the credibility of the witnesses and the weight to be given the testimony, and if the evidence of the State's witnesses was believed by the jury, the circumstances proven are sufficient to support the verdict.
The venue of the case was changed, and this trial was had in Archer County. There are no bills of exception in the record to admitting or rejecting testimony, the only bill in the record relating to the misconduct of the jury. The term of court at which appellant was tried adjourned on April 21, 1911, and the bill of exceptions presenting this matter was not filed until August 31, 1911, four months and ten days subsequent to the adjournment of the court. Under all the decisions of this court we can not consider this bill. In the case of Probest v. State, 60 Tex.Crim. Rep., it was held that evidence introduced on matters arising on issues formed on a motion for a new trial must be filed during the term of court. This has been the rule in this court since the rendition of the opinion in Black v. State,41 Tex. Crim. 185. But under no statute ever enacted could a bill of exceptions relating to any matter be filed four months after the adjournment of court for the term. By the terms of section 7 of chapter 39 of the Act of the Thirty-First Legislature, a party was given thirty days after adjournment of court in which to file bills of exception to matters arising on the trial of the case, and in the Act it was provided that for good cause shown the court might extend the time to not exceeding ninety days from adjournment of court, and had the court undertaken to do so it would not have had authority to extend the time one hundred and thirty days. However, the record discloses the court did not extend the time beyond the thirty days allowed by law, and the bill of exceptions can not be considered by us for any purpose.
The appellant on the former trial was adjudged guilty of murder in the second degree only, consequently it was unnecessary for the court to define or submit murder in the first degree. The court charged the jury: "I instruct you that our statute provides that any person of sound memory and discretion who shall unlawfully kill any reasonable creature in being, within this State, with malice aforethought, shall be deemed guilty of murder, and murder is distinguishable *Page 539 from every other species of homicide by the absence of the circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide.
"The distinguishing characteristic of murder in the second degree is implied malice aforethought. Malice aforethought includes all those states of mind under which the killing of a person takes place without any cause which will in law justify, excuse or extenuate the homicide. It is a condition of the mind which shows a heart, regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken. Malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse."
This charge has been frequently approved by this court as has also the court's charge on circumstantial evidence, and neither of them are subject to the criticisms contained in the motion for new trial.
The court further charged the jury: "In this case the defendant has interposed the defense of what in legal phraseology is termed an alibi, that is, that the defendant was at said time at another and different place from that at which said offense is alleged to have been committed and therefore was not and could not have been the person who committed said offense.
"Now, if you have a reasonable doubt as to the presence of the defendant at the place and at the time where said offense is alleged to have been committed, you will find the defendant not guilty and so say by your verdict.
"Your verdict must not be the result of lot or accident. If you find and believe from the evidence in this case that Mrs. Emma Crowell died as the result of an accident, or, if you have a reasonable doubt as to whether or not her death was the result of an accident, then, in either event, you will acquit the defendant."
This charge does not assume that an offense had been committed, but submits the issues made by the evidence fairly and fully.
These are all the paragraphs of the court's charge criticised. No special charges were requested, and the other grounds in the motion are not supported by any bills of exception.
The judgment is affirmed.
Affirmed.
ON REHEARING. May 22, 1912.