*8ON APPELLANT'S MOTION FOR REHEARING.
CHRISTIAN, Judge.As pointed out in the motion for rehearing, we were in error in stating in the original opinion that appellant operated a beer tavern. According to the statement of facts, he operated a dance hall where soft drinks were sold, there being nothing to indicate that he was engaged in the business of selling beer.
Appellant contends that we were not warranted in stating in the original opinion that he shot deceased without “any apparent cause, excuse or justification.” The statement complained of was made in that part of the opinion setting forth the substance of the testimony of the State. In short, the opinion states that, according to the State’s testimony, the shooting was without excuse or justification. The opinion clearly shows that, according to the testimony of appellant and his witnesses, appellant acted in self defense. The jury had the right to reject appellant’s testimony and that of his witnesses.
Appellant also complains of the failure of the original opinion to refer to the testimony of witnesses for appellant to the effect that about five minutes before the shooting deceased, while under the influence of intoxicating liquor, knocked one of appellant’s patrons down, refused to leave the dance hall and cursed appellant. A detailed statement of such testimony is not deemed necessary.
Appellant contends that the verdict is fundamentally defective, his position being that it should have recited whether appellant was guilty of murder with malice or murder without malice, or else recited that he was guilty as charged in the indictment. This court has expressly held that it is not necessary for the jury to specify in their verdict whether the appellant is found guilty of murder with or without malice. In the case of Wright v. State, 21 S. W. (2d) 507, in which a three-year penalty was assessed upon a conviction for murder, it was insisted that the jury should have been instructed by the court to state in their verdict whether appellant was found guilty of murder upon malice or without malice. In overruling this contention, the court said: “The jury was properly instructed what punishment might be assessed under either finding. There is no merit in the objection.” In Williams v. State, 34 S. W. (2d) 886, we said: “Appellant insists that the verdict of the jury should have specified whether he was found guilty of murder with or without malice; it being further contended that without such a finding the verdict is too indefinite to support a judgment. Davis v. State, 110 Tex. Cr. R. 605, 10 S. W. *9(2d) 116, is direct authority against the contention. See, also, Wright v. State, 113 Tex. Cr. R. 297, 21 S. W. (2d) 507.”
Appellant concedes that the verdict would have been sufficient if it had recited that he had been found “guilty as charged.” In the present case no offenses included in an indictment for murder were submitted to the jury. It not being necessary for the jury to specify whether they found appellant guilty of murder with malice or without malice, the finding of the jury that he was guilty was tantamount to a finding that he was “guilty as charged,” that is, guilty of murder. See Steinberger v. State, 34 S. W. 617, and 42 Texas Jurisprudence 466. In 42 Texas Jurisprudence 453 it is said:
“In construing a verdict the main object is to ascertain the intention of the jury. * * * All reasonable presumptions and intendments are made in order to sustain the verdict; * * * Indeed it has been said that a verdict should not be set aside unless it is so defective and uncertain that the court cannot know for what offense to pass judgment.
“The verdict may and should be construed in connection with the indictment or information and the charge of the court, especially where the intention of the jury would not otherwise be clear. It is said that it must always be presumed that in expressing their finding the jury have reference to the charge of the court, unless they also state something which shows that such was not their intention.” „
Viewing the verdict herein in the light of the principles controlling, we are constrained to hold that it is sufficient to support the judgment.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.