Appellant was convicted of murder, and his punishment assessed at death. Motion was made to quash the indictment because of discrimination against the negro race, he being a negro. While the evidence shows there had been but two negroes summoned or served upon the jury for a number of years, yet the testimony does not show discrimination against that race. The facts show that there were perhaps 1000 negro voters in Ellis county, and about 8000 white voters in the county. Yet these witnesses further testify that they knew practically no negroes who were qualified to sit on the grand jury; none of them placing the number larger than three or four. The commissioners testify that they did not discriminate in selecting grand jurors; in fact did not take into consideration whether jurors were negroes or white men. We do not believe there was any error in the refusal of the court to quash the indictment. Hubbell v. State, 67 S.W. Rep., 413; Parker v. State, 65 S.W. Rep., 1066; Martin v. State, 72 S.W. Rep., 386.
This excerpt of the charge is criticised: "That in murder in the first degree malice must be shown by the evidence to have existed, to the satisfaction of the jury, beyond a reasonable doubt, while in murder in the second degree malice would be implied from the fact of an unlawful killing." The whole paragraph taken together is as follows: "The next lower grade of culpable homicide than murder in the first degree is murder of the second degree. Malice is also a necessary ingredient of the offense of murder in the second degree; the distinguishing feature, however, so far as the element of malice is concerned is, that in murder in the first degree malice must be proved to the satisfaction of the jury beyond a reasonable doubt as an existing fact, while in murder in the second degree malice will be implied from the fact of an unlawful killing." Then follows the definition of implied malice, which is correct; the court having previously defined malice in its general sense as well as express malice. We do not believe there is any error and the criticism is hypercritical. The charge, taken together with the definitions of malice and the two degrees of murder and the necessary existence of malice in the two degrees, is clearly and fully defined by the court.
This excerpt of the charge is also criticised: "If the jury have a reasonable doubt of defendant being guilty of murder in the first degree they should acquit him of that offense, and next proceed to inquire whether he is guilty of murder in the second degree:" This is citicised because it precludes the idea of an acquittal, and requires the jury to consider as to the lower grade, although they may have believed defendant not guilty of any offense. This charge is not subject to this criticism. It simply informed them, if they believed him not guilty of murder in the first degree, they then may inquire whether he is guilty of murder in the second degree. This does not assume any fact against defendant, nor does it so inform the jury. After submitting murder in the second degree they are informed if they do not believe beyond a reasonable *Page 554 doubt that he is guilty of murder in the second degree, they should acquit him.
It is contended further that the law of manslaughter should have been given in the charge to the jury. There is no evidence in the record in the remotest degree suggesting this issue. The evidence shows that appellant had been harsh and cruel to his wife and quarreled with her and mistreated her. On the night of the homicide he went to her room, about 11 o'clock, and some words passed between them, as heard by witnesses near by, but these are not stated, except that deceased said, "If you are going to kill me, why shoot me;" and he immediately fired three shots into her body, killing her instantly. He had threatened to take her life. She had been in her room but a few moments when the tragedy occurred, and her prostrate body was found in a partially undressed condition preparatory to her retirement for the night. He went to town and in a saloon told of the tragedy, and was arrested. We believe the evidence was sufficient to justify the verdict of the jury. The judgment is affirmed.
Affirmed.
ON MOTION TO COMPLETE RECORD.