The appellant was convicted of murder in the second degree, and his punishment assessed at fifteen years’ confinement in the State penitentiary ; and his motion for a new trial having been overruled, he prosecutes this appeal.
The sixth error assigned is, that the court erred in refusing to compel the district attorney to elect as to which count in the indictment he would try the defendant under, — whether under the one charging the murder to have been done by shooting, or the one charging it to have been done by burning.
It is shown by bill of exceptions that the court was moved to compel this election by the prosecuting attorney, when *590the defendant was arraigned and before he entered his plea, and also after the evidence had been closed; which was refused by the court.
The indictment charges, with great, perhaps unnecessary •particularity, first, that the accused shot the deceased in the mouth with a pistol, inflicting a mortal wound ; secondly, ■that the accused struck the deceased on .the head with a pistol, inflicting upon him a mortal bruise; and, thirdly, it charges that the accused set fire to and burned the clothes of the deceased, and thereby mortally burned him upon the back, breast, and side; and proceeds in this language : “Of which said mortal wounds, inflicted as aforesaid, in and upon the mouth of him, the said Melendes, and of which said mortal bruise, inflicted as aforesaid, in and upon the head of him, said Melendes, as well" as of the said burning of the back, breast, and side of the body of him, the said Melendes, he, the said Melendes, then and there instantly died; and so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Torivio Gonzales, him, the said Felipe Melendes, in the manner and by the means aforesaid, wilfully and of his express malice aforethought, did kill and murder; against the peace and dignity of the State.”
An inspection of the indictment shows beyond controversy that the pleader did not 'intend, nor did he in fact, as is unusual, charge that the murder was committed in three several ways, in so many different counts in the •indictment, each having its'proper separate commencement and conclusion; but that the several injuries were all inflicted by the accused upon 'the person of the deceased, and that by' those several injuries the murder was consummated. This conclusion is inevitable from those portions of the indictment copied above.
The indictment does not» aver that death was the result of either the shot; the blow upon the head, or the burning, *591hut that by these several means being employed the murderous effect was produced. If there had been more than ■one proper count in the indictment, and the several counts were “ introduced solely for the purpose of meeting the evidence as it might transpire, the charges being substantially for the same offence,’-’ the prosecution would not be required to elect. Dalton v. The State, 4 Tex. Ct. App. 333, and authorities there cited.
The charge of the court on this branch of the subject is complained of as allowing the jury too much latitude in Arriving at a verdict. The fourth paragraph of the charge is as follows : “ If the jury have a reasonable doubt whether ■or not the deceased came to his death by the hands of the defendant, from wounds inflicted by some of the means charged in the indictment, — that is, from the wounds inflicted by a pistol-shot, or by burning, — they must acquit.”
Under this charge the jury would have been warranted •in finding the defendant guilty upon satisfactory evidence that by the pistol-shot the deceased had been disabled to ■free himself from his burning clothes, and in consequence of his condition he died, although the jury might not have .been satisfied as to whether the shot or the burning was the immediate cause of death, if the proof showed that beyond doubt the death resulted from either, or from the effect of the two combined. ■ We see no error in this charge, when it is considered in the light of the evidence and the aver.ments of the indictment, and in connection with the charge of the court, taken as a whole. On the contrary, we are of opinion that the charge of the court fairly submitted to the jury the question of the guilt or innocence of the accused, and in a manner not likely to mislead.
The first charge asked by the accused and refused by the court relates to the subject of murder in the first degree, - and need not be noticed here; for, even if we should deem *592the instruction, proper to have been given at the trial, which is not perceived, it would not warrant the reversal of the judgment of conviction for murder in the second degree, the charge being in other respects unobjectionable.
It is urged in a motion in arrest of judgment that the indictment is insufficient in that it ‘ ‘ presents no offence against the law,” and because “the offence is not charged in plain and intelligible words.” Counsel for the appellant fail, in the record or in arguments, to point out any defect in-the indictment, and none are perceived.
It is urged in the fifth assignment of error that the verdict is contrary to law and the evidence. We have failed to discover that this assignment of error is sustained by the •record. . So far as the law of the case is concerned, the conviction is a proper one. As to the evidence, the only wonder is that the jury did not convict of murder in the first degree. The testimony not only shows the guilt of the accused, but shows also that a most unprovoked attack was made by the accused, when he must have known the deceased was unarmed and entirely helpless, and under these circumstances shot him down, and when he attempted to rise, struck him down by a blow upon the head, and, after going away from the bloody scene, returned, and,-finding his victim prostrate and helpless, lit matches and fired his clothes, so that they were almost entirely consumed from the waist up, and his body burned until some of the witnesses thought that the burning was the cause of his death. The evidences of cruelty and fiendish barbarity are clear and unmistakable.
We have failed to discover any material error -in the charge given, or in refusing those asked by the accused, or in overruling the motion for a new trial, or in refusing to arrest the judgment, or in refusing to require the counsel for the State to elect as to what particular portion of. the *593indictment he would try upon. The appellant has been fairly tried and legally convicted; and, judging by the case as presented, the punishment imposed is well merited.
The judgment of the District Court is affirmed.
Affirmed.