This is an appeal from a verdict and judgment of conviction of murder in the second degree, charged to have been committed by the appellant upon one James M. Pardue, in Hill County. It is averred in the indictment that the mortal wound was inflicted on October 26, 1877, and that death ensued therefrom on November 8, 1877. The indictment is for murder.
The errors assigned are: 1. That the court erred in its charge to the jury, and especially in not charging on manslaughter. 2. That the court erred in not giving charges Nos. 1, 2, and 3 asked by defendant’s counsel; counsel stating in this assignment of error that charge No. 1 is on the subject of manslaughter, and charges 2 and 3 are with reference to the instrument used, and, it is insisted, should have been given.” 3. That the court erred in refusing the defendant’s motion for a new trial. The grounds set out in the motion for a new trial, so far as they *542attempt to state any special grounds for the motion, are substantially the same as the assignment of errors, with the-statement made in a general way that the court erred in its charge to the jury, and that the jury found their verdict contrary to the law and the evidence, and which do not point to any specific error of which we can consider.
Recurring, then, to the assignment of errors, the main question presented is as to whether the accused was or was not entitled to have the question submitted to the jury whether the homicide was manslaughter, and not murder of either the first or the second degree. In determining this question we must look to the .testimony, it being the duty of the court to instruct the jury as to the law applicable to the case as developed by the evidence adduced on the trial.
The rule in Hudson v. The State, 40 Texas, 15, is believed tobe a correct one, to wit: “When the facts in evidence shall conduce to establish that the defendant may be guilty of something less than that with which he is charged, when the offence admits of degrees, the difference between the different degrees should be explained to the jury by instructions from the court.” On the other hand, when the evidence establishes one of the higher grades of the offence charged in the indictment, the court is not required to charge as to the lesser grades of the offence. Hudson’s Case, above cited ; Jones v. The State, 40 Texas, 188 ; Holden v. The State, 1 Texas Ct. App. 225 ; Pugh v. The State, 2 Texas Ct. App. 539. “It is only necessary to give such instructions as are applicable to every legitimate deduction which the jury may draw from the-facts.” Bronson v. The State, 2 Texas Ct. App. 47, and authorities there cited. This being done, nothing moréis required.
We are of opinion that the following portion of the general charge fully and properly presented to the jury the only instruction required to be given on the subject of a reduc*543tion of the crime below murder of the second degree, and-as favorably for the accused as the testimony warranted r “ A party whose person is violently and unlawfully attacked may repel force by force, and is not bound to retreat in-order to avoid the necessity of killing his assailant; but im such case, in order to excuse or justify homicide, the attack must be such as to produce a reasonable expectation or fear-of death, or some serious bodily injury. If the party killing-sought and provoked the difficulty, with the intention of" taking advantage of any hostile movement on the part of his adversary, he would not be either justifiable or excusable.
“When an unlawful and violent attack is made by one-person upon another, and the attack so made is not such as-to produce a reasonable expectation or fear of death or-great bodily injury, in order to excuse or justify killing under such circumstances, the person so attacked must use all other means in his power to prevent the injury, except to» retreat,' and the killing must take place while the person killed was in the very act of making such unlawful ancb violent attack. If from the evidence you believe that the-defendant killed James M. Pardue, and further believe from the evidence that the killing occurred under such circumstances as would excuse or justify the act under the preceding instructions, then such killing would not be unlawful,, and you should not find him guilty.”
We fail to discover that the proofs warranted or demanded-' a charge on the subject of manslaughter.
Those portions refused of the instructions asked are-believed to be much more favorable to the accused than was ‘ warranted by the facts proved, and the court did not err in refusing to give them to the jury as part of the law of the case.'
The court, in the general charge, instructed the jury om the subject of the legal inferences to be drawn from the-*544■character of weapon used in effecting the homicide, as follows :
“ The instrument or means by which a homicide is committed is to be taken into consideration in judging of the intent with which the act is done. If the instrument be one not likely to produce death, it is not to be presumed, in the absence of proof, that death was designed ; unless from the manner in which it is used, or the circumstances connected therewith, such intention evidently appears. It is a legal maxim that every one is presumed to intend whatever would be the reasonable or probable result of his own acts, and the means by him used. Hence, when a homicide is already established, and the instrument used, or the manner in which it was used, was reasonably calculated to produce that result, the law presumes that such was the design, and imputes or implies malice without further proof, and makes such killing murder in the second degree.”
This instruction is properly qualified to this effect, unless the proof showed circumstances of mitigation or justification, as to which proper instructions were given in another part of the charge.
It is hardly practicable to set forth the precise application and bearing of a particular portion of an elaborate charge, covering the various phases of the different degrees of murder, including full explanations of express and implied malice, as well as the doctrine of self-defence, by an isolated extract here and there; and hence the necessity of the rule that the charge, in order to determine its sufficiency and applicability, should be taken and construed as a whole.
If we consider the general charge in the present case as a whole, and interpret each portion with reference to every other portion, we find in it the law of the case, in every legitimate light. of the evidence, and we can but commend it as an able enunciation of the law in all its controlling *545features, and in which all the rights of the accused, under the proofs, were carefully guarded and fairly presented to the jury. We are, therefore, of opinion that the errors assigned with reference to the charge given, as well as those refused, are not well taken. Not only so, but, so far as we can determine from the record before us, the accused has had a fair and impartial trial, in which the momentous issues were properly appreciated.
There is, it is true, some conflict in the testimony. On this subject the jury were properly instructed by the court. It was the business of the jury to deal with this, under the law as given them in the charge; and from an inspection of the testimony, we are of opinion the jury did not abuse their trust. On the contrary, it appears to us to be ample to support a conviction of murder in the second degree.
There is nothing seen in the record, after a patient and careful examination of the whole case, which calls for the granting of a new trial or the reversal of the judgment of the District Court, and it is affirmed.
Affirmed.