Appellant insists that the evidence as to the character of weapon used by him in the fatal difficulty is such that the learned trial judge erred in submitting the law of murder. The matter was discussed in our original opinion but deference to the insistence of appellant has led to another review. If one, not in self-defense or not under circumstances reducing to manslaughter, intentionally assault another with a deadly weapon and death ensue, it is murder; whether such assault be in self-defense or be reducible to manslaughter, or be murder, — are fact issues for the jury under appropriate instructions. If one not in self-defense and not under circumstances reducing to manslaughter, assault another and death *Page 421 ensue and it be contended that the weapon used was not deadly and that the intent to kill was lacking, — these still are fact issues for the jury under appropriate instructions. Harding v. State, 51 Tex.Crim. Rep.; Price v. State, 60 Tex. Crim. 91; Ford v. State, 64 Tex.Crim. Rep..
The court below gave in charge to the jury Article 1147 P.C., and in applying the law to the facts required them to believe beyond a reasonable doubt that there was an intent to kill on the part of appellant, and that the weapon used by him was one which by the mode and manner of its use was likely to produce death, before they could convict. This was as far as the court was required to go. Johnson v. State, 42 Tex.Crim. Rep.; Posey v. State, 46 Tex.Crim. Rep.; Lucas v. State, 49 Tex. Crim. 137; Betts v. State, 60 Tex.Crim. Rep.. This would be the law even when death ensued from the cut of a knife which was not per se a deadly weapon. If one intending to kill uses a weapon not per se deadly but in a manner likely to produce death, he is guilty of murder if death results.
There seems little room for controversy as to what caused the death of deceased. All the witnesses who actually examined the only wound upon him said it was on the right side of the head, was four or five inches long, and penetrated the skull for more than an inch of its length. That this wound was inflicted by appellant is almost beyond dispute. He admitted a fight with deceased near Hargrove's store on the night of the disappearance of deceased, and claimed to have struck at deceased with a pocket knife. The body of deceased was found two weeks later in a pool of water some three hundred yards from said store; clotted blood covering a space about the size of a hat was found on the bank of said pool about sixteen feet from the body. When the pool was drained, long tracks led from a point where the blood was found to where the body was found, and thence away. Nothing was observed to indicate that deceased was alive when his body was placed in the water but the evidence seems convincing to the contrary. In the interim between the disappearance of deceased and the finding of his body appellant disclaimed any knowledge of the whereabouts of deceased. The story told by him on the witness stand was that he got out of the buggy in which he and deceased were riding in apparently friendliness, and was standing near or between the wheels and that deceased began to whip the mule causing it to run and thus knocked him to the ground; that the mule ran to Hargrove's store and there struck the buggy against a post, wrecking it; that when he walked up to said buggy deceased came from around the corner of the store, and when asked why he ran over appellant and tore up the buggy deceased began to curse and threatened to kill appellant; that he got out his knife and started to walk away, and told deceased not to run on him with the knife which he said deceased had; that deceased cursed him again and ran at him and that he struck back at deceased; both fell to the ground and got up, and *Page 422 one ran one way and the other another; that he had seen deceased no more after this parting until his body was found in the pool. He swore that if he cut deceased he did not know it, and that he did not put the body in said pool of water.
The law of manslaughter was fully submitted as well as that of aggravated assault, and in this connection the learned trial judge told the jury that if appellant in a sudden passion arising from adequate cause unlawfully attacked deceased, and they believed or had a reasonable doubt thereof that the instrument or means used by appellant in said attack was not a deadly weapon; or if in such case they had a reasonable doubt of the fact that appellant intended to kill deceased, they could not convict him of more than aggravated assault. Again, applying the law to the facts in reference to aggravated assault, the court told the jury that if they believed that appellant attacked the deceased with a weapon which was not deadly or without intent to kill, that they should find him guilty only of aggravated assault. This seems to us to have been eminently fair to appellant and to have presented fully the only defensive theory appearing to have foundation in the facts.
Appellant strenuously insists that under the facts he is not guilty of more than manslaughter. We regret our inability to conclude that the verdict of the jury finding him guilty of murder is without support. The whole course of conduct of appellant at the time and thereafter as well as his testimony upon the stand, were for the jury.
If appellant had frankly told that deceased drove over him with the buggy and that this caused him to become so enraged as that he seized an axe or pocket-knife and struck him, thereby causing death, the jury might have concluded that he was telling the truth and adjudged him guilty only of manslaughter. But when the body of deceased is concealed and when found bears upon it a wound testified to by at least one physician as appearing to have been made by an axe, and when it further appears that after death the body of deceased was concealed apparently by his slayer, and when there is testimony that one killed by such a wound could not have gone the distance from the store to the pool of water, and when thereafter appellant denies any knowledge of the whereabouts of deceased, and when on trial tells the apparently flimsy story that he and deceased struck at each other with knives and separated, and one ran one way and one the other, and that he had not seen deceased since, we can understand how the jury seriously doubted the truth of any of his statements as to how the fatal difficulty arose or its attendant circumstances.
To prove motive is not indispensable in murder cases. Under the former law when an unlawful killing was shown, and the facts did not reduce it to manslaughter or showed express malice, malice was implied and it would be murder in the second degree. While the degrees *Page 423 have been abolished by the statute, the power and right of the jury to imply malice was not taken away, nor is the right of the jury to settle conflicting facts and theories in anywise abridged. The jury are the exclusive judges of the credibility of witnesses and the weight of their testimony and can in nowise be held to accept as true the statements and explanations made by one accused of crime. They may reject entirely his testimony and be wholly within their province. Ordinarily men who kill their friends in moments of passion do not conceal their bodies or manufacture and tell false stories about the occurrences. When the law of a given case is fairly submitted upon the trial and all the theories are considered in the light of a proper instruction, this court does not feel inclined to disturb the verdict.
Finding no error in the motion for rehearing, same will be overruled.
Overruled.