Conviction for murder; punishment, five years in the penitentiary.
This homicide took place prior to the taking effect of the Acts of the 40th Legislature changing the definition of murder. Upon the trial hereof and before announcement of ready, appellant in writing filed his application to be tried under the law as it is written after such change, basing his right to such election on Art. 13 P. C., which provides that when an offense is prescribed by one law and altered by *Page 309 a subsequent statute whose provisions ameliorate the penalty fixed by the former law, the accused shall be tried under the provisions of the later law unless he elect to receive the penalty prescribed by the statute in force when the offense was committed. The trial court refused appellant's request and he was tried under the law as it was prior to said alteration. The court submitted murder, manslaughter and aggravated assault in his charge to the jury, and appellant was given five years for murder. To state the contention of appellant in other words, — he insists that the act of the 40th Legislature (Chap. 274) changed the minimum punishment for murder from five years, as it was formerly, to two years as it now stands, and that this was such an amelioration of the punishment for the offense as entitled him to be tried under the law as it is now written. Appellant admits that our opinion in Hernandez v. State, 6 S.W.2d 748 has passed on his contention adversely, but he urges that we did not comprehensively view the effect of said Art. 13 in disposing of said case; and that since we said in that case that the acts of the 40th Legislature relating to murder, in no way amended said Art. 13, the latter must be taken as effective and applicable in this case. We said in the Hernandez case, supra, that the effect and design of Chap. 8, Acts Special Session, 40th Legislature, was to take out of the operation of Art. 13, supra, prosecutions for murder when the offense was committed prior to the taking effect of Chap. 274, supra. We see no reason to doubt the correctness of our decision in the Hernandez case.
The State urges that Art. 16 P. C. has application. Said article provides that where an offense is defined by one law, and by a subsequent law the definition of the offense is changed, no such change shall have effect as to the offense already committed, but one accused of violating the first law shall be tried under that law. It seems clear that the language of Chap. 8, Acts of Special Session, 40th Legislature, supra, intends to give to the provisions of Art. 16, supra, which is a general law, the force and effect of a special statute and put beyond question the intent of the law-makers that the offense of murder committed prior to the taking effect of Chap. 274, supra, should be tried and punished in all things under the old law; and this whether prosecution had been instituted, or whether the case was pending either for murder or manslaughter. The language used in said Chap. 8 seems mandatory: "No offense committed prior * * * shall be affected," etc. We think the use of the word "may" later in said act did not have the effect of nullifying the mandatory prior *Page 310 part of said act. With deference to appellant's able brief, we are not able to agree with his contention in this regard.
Other questions are presented in the brief and by bills of exception and each has been considered in the light of the argument of appellant, but we regard the charge of the court in this case as an admirable presentation of the law of murder, of self-defense and of the facts relating thereto as appear in this record. We can not agree that the facts so far establish that deceased assaulted appellant just prior to the homicide as to make it error for the court to submit to the jury as a fact issue whether adequate cause existed; nor do we believe that the court's charge as to the right of appellant to defend against apparent danger, too restrictive. The charge referred to other parts of the charge on self-defense and examining the latter part we note that same was broad and submitted the issue of self-defense as viewed from the standpoint of the appellant both as against real and apparent danger, as against an attack imminent and threatening, or one existing in the belief of appellant.
Finding no error in the record, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.