The position assumed in the briefs of counsel for appellant, and maintained upon principle and authority, that by a change of constitutions in 1876 the penalty for murder in the first degree was entirely abrogated, and that Until the adoption of the Revised Penal Code, which took effect on July 24, 1879, there was no penalty affixed to the offence of murder in the first degree by the laws of this State, has already been carefully considered and substantially settled in the case of Cox et al. v. The State, decided at our last Austin term, but not yet reported. A mere reference to the opinion in that case might well suffice' for a proper disposition of the question in this case ; but as the position is so strenuously insisted upon, and the question seems still regarded as open, it is deemed not inappropriate to reexamine the question, and to give a further expression to the views entertained by this court, in addition to the views already expressed by the learned judge who delivered the opinion in the case referred to.
Prior to the adoption of the Constitution which took *230effect on the thirtieth day of March, 1870, the punishment for murder in the first degree was fixed by the law at death. Penal Code, art. 612a. Art. 5, sect. 8, of that instrument provided as follows: “In the trial of all criminal cases, the jury trying the same shall find and assess the amount of punishment to be inflicted, or fine to be imposed, except in cases where the punishment or fine shall be specifically imposed by law; provided, that in all cases where by law it may be provided that capital punishment may be inflicted, the jury shall have the right, in their discretion, to substitute imprisonment at hard labor for life.’' The Constitution of 1870 was abrogated by our present Constitution, which went into operation on the eighteenth day of April, 1876, and which omitted the above provision altogether.
It is now contended that when the Constitution of 1870 became the organic law of this State, the above provision became a part and parcel of the law affixing a penalty to the offence of murder in the first degree, interwoven and blended with the statute as inseparably and thoroughly, and perhaps more solemnly, than if placed there by ordinary legislative enactment, and that with its. repeal, in 1876, the penalty for murder in the first-degree fell with it. In other words, that between the eighteenth day of April, 1876, and the twenty-fourth day of July, 1879, our law affixed no penalty whatsoever to the offence of murder in the first degree, and that such offences committed within the stated interval cannot now be punished; or, if this be not so, the provision in the Constitution of 1870, having been carried into the statute as a part of the penalty for murder, was continued in operation by the provision of art. 16, sect. 48, of our present Constitution, which continues in force all existing laws and parts of laws not repugnant to its provisions ; and that the law applicable to this case was not given to the jury, there having been no instruction as to the alternative penalty for murder in the first degree.
*231■ Authorities are not necessary to support the proposition that in the interpretation of written constitutions, as well as of statutes, the true inquiry is to ascertain the intention of the law-making power, in order to give it proper effect; or, in the language of Judge Cooley, “the object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it.” Cooley’s Const. Lim. 55. True, this intent is to be found in the instrument itself; but here the rules of construction as applicable to constitutions and to statutes diverge, and those who are charged with the duty of expounding the former are not authorized to apply to the language employed any technical or abstruse meaning, but are required to give effect to its plain and ordinary signification. Says Judge Story, in his Commentaries: “Constitutions are not designed for metaphysical or logical subtilties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understanding. The people make them, the people adopt them, the people must be supposed to read them with the help of common sense, and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss.” Story on Const., sect. 451. Or, as said by the court in Alabama, quoting from Chief Justice Gibson : “A constitution is not to receive a technical construction, like a common-law instrument or statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them.” 34 Ala. 238.
What, then, was the intention of the people in adopting the constitutional provision in question? Was it to amend the statutes in force as to capital felonies, and to prescribe in the organic law that the punishment for those offences should be changed? If so, it is at least reasonable to infer *232that they would have employed language unmistakable in its simplicity. In its adoption they were not performing an act of ordinary legislation, but were engaged in the establishment of fundamental principles of government for themselves, reserving to themselves such powers as they were not willing to delegate, and providing the general features of that system which in their judgment was best conducive to their future happiness and prosperity. In their sovereign capacity, and keeping even pace with the humane spirit of the age, they provided that their jurors, in the trial of persons charged with capital felonies, and notwithstanding the legal penalty affixed to the offence might be death absolutely, might yet, in the exercise of a humane discretion granted them directly by the people themselves, substitute imprisonment for life for the penalty affixed by law. This privilege or discretion, which may be styled a part of the penalty or one of the penalties in all cases punished capitally under the law, partook rather of the grace of the sovereign which decreed its exercise, in all proper cases, in spite of the fixed and absolute penalty prescribed by law, and in mitigation thereof. It was not only proper but necessary that, in all prosecutions for capital offences committed during its existence in the organic law, the jury should be informed of .its existence as a part of the law applicable to the case, in order that they might exercise their discretion in affixing the punishment; but it by no means follows as a necessary consequence that it became so firmly imbedded in the statutes, as part and parcel thereof, that the abrogation of the organic law in which it was contained left it transplanted in those statutes, and firmly imbedded as a part of the fixed law for that class of offences. We know of no rule of law1 tending to sustain such construction.
In the adoption of our present Constitution, the people omitted this provision contained in the formér instrument1, and expressly continued in force all laws not repugnant to *233the provisions of the new instrument. Const., art. 16, sect. 48. The effect of the adoption of the new Constitution was an entire abrogation of the old, except as to provisions reenacted in the new, and such provisions as by the terms of the new Constitution were continued in force and operation. The State v. McAdoo, 36 Mo. 454; Smith v. Davis et al., 28 Md. 244; Pierce v. Delamater, 1 Comst.18. If the terms “ all laws and parts of laws,” as employed in sect. 48 of art. 16 of the Constitution, and which were continued in force not being repugnant to its provisions, can be construed to include the provision in the former Constitution relating to the substitution of imprisonment for death in capital cases, as not repugnant to the provisions of the present Constitution, other provisions of the abrogated instrument could with equal propriety be invoked as existing law, and the basis of rights accruing and to accrue, until the Legislature might see fit to extinguish them by express repeal, if that was' competent; And the will of the people who caused to be framed and adopted an instrument of organic law, as an entirety, would be set at naught by the resurrection of provisions in the dead instrument which had been designedly discarded and omitted from the new under the well-grounded assumption that such omission operated as an abrogation. Even a statute which is evidently intended as a substitute for a former statute, and which omits any provision, contained in the former statute, is uniformly held to operate a repeal of the provision omitted.
Certainly there can be no mistake as to the intention of the people in the adoption of the present Constitution as an entire substitute for the one under which they had previously lived. And such is the legal effect of the adoption of a new Constitution, according to all the authorities to which we have had access. Say the Supreme Court of Missouri in the case of McAdoo, above cited: “ The present Constitution, when it took effect on the fourth of July last, *234was from that date the supreme law of the land, and applied to all subjects not exempted from its operation. The old Constitution was entirely superseded by the new, and its power or authority cannot be invoiced in the matter.” “A constitution,” say the Court of Appeals of New York, “ is to be held as prepared and adopted in reference to existing statutory laws, upon the provisions of which in detail it must depend to be set in practical operation.” The People v. Jackson, 47 N. Y. 380. See also Collins v. Tracy, 36 Texas, 546.
To the same effect is the language of Judge Thurman, in delivering the opinion of the court in Cass v. Dillon, which involved the continued existence of a statute under a new constitution. Says this eminent constitutional lawyer: “ If the laws of a conquered country remain in force until repealed, so far as they are consistent with the government of thé conquerors, a fortiori is it true that the laws of a State survive a peaceable change of its constitution, effected by its own people, and not varying the general structure of its government, to the full extent to which they are consistent with the new order of things.” 2 Ohio St. 610.
But conceding the point insisted upon in this case, that the provision under discussion, in the Constitution of 1870, was not fundamental but legislative in its character, we cannot hold that it survived the abrogation of that Constitution. Under that aspect of the case, its legal effect may be thus stated: Under the act of 1858 the punishment for murder in the first degree was fixed at death. By legislative act of the convention of 1869 it was provided, not by an amendment of the original law, but by supplemental act, that, notwithstanding the previous law, which is left in force, imprisonment for life may be substituted for the death-penalty. After the lapse of six years the supplemental act is repealed. How is the other separate and independent provision affected by such repeal? Without such constitutional provision, it was competent for the Leg*235islature at any time to have supplemented the act of 1858 by a separate statutory provision of similar import to the one contained in the Constitution, and a subsequent legislative repeal of the supplemental act, without reference to or qualification of the former law, could not be held to have affected that former law. If, therefore, this provision was legislative, it was independent in its nature, not intended to be and become a part of the statute in force or thereafter passed as to capital felonies, and its repeal or abrogation.left the former statutes fully vitalized and continued in force and effect by express provision in the new Constitution. That such was the clear intention of the people in the adoption of the present Constitution is unmistakable; and neither this court nor any other court could find justification in overriding this plainly expressed intention, and in giving to this act of the people a strained and wholly technical signification never contemplated or intended, and which leads to an absurdity in that it would inevitably defeat the great principles of government, among which the protection of life is perhaps the most essential. There • was no error in failing to charge the law as contended for.
It is no new principle in the law of this State that to justify a conviction upon circumstantial evidence alone the facts relied on must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. Barnes v. The State, 41 Texas, 342; Blade v. The State, 1 Texas Ct. App. 391. If this be so, certainly a jury called to pass upon a case of that character should be informed of the rule as a part of the law applicable to the case. An ordinary charge upon the law of reasonable doubt, copied from the statute, cannot convey to their minds a clear conception of this exaction of the law, when a conviction is sought upon circumstantial testimony alone; and without some definite rule for their guidance — a rule which will serve to impress itself on their minds, and cause them to weigh most *236carefully all the facts, isolated or connected, from which they must reach their conclusion by reasonable inference — they are not unlikely, in many instances, to found their verdict upon strong suspicion or mere probability, which will not suffice under the law. Tollett v. The State, 44 Texas, 95.
In prosecutions for ordinary felonies, juries are required to be instructed as to the law of reasonable doubt, even when the evidence is of a positive character and can lead to but one legitimate conclusion. It is much more essential, in a prosecution in which nothing is proved by positive testimony save the corpus delicti, that the jury be further instructed as to the conviction which must impress itself upon their minds, drawn by inference from the circumstances in evidence, before they can say that, beyond a reasonable doubt, the prisoner before them perpetrated the act. And it is believed that the adjudged cases in our State furnish no instance of a conviction for a grave felony upon circumstantial testimony alone, unless the charge of the court plainly directed the jury as to the principles of law which should govern them in reaching their conclusion; and we have already held it error to refuse a charge of this character when asked in a proper case. Harrison v. The State, 6 Texas Ct. App. 42.
In the case of Burrell, 18 Texas, 713, the judgment was reversed as to the appellant Burns because the only evidence tending to inculpate him was circumstantial, and the court failed to instruct the jury upon its effect, notwithstanding they were instructed that “ circumstantial testimony must tend closely to prove the fact, or it is not of itself sufficient, but may still be entitled to great weight in connection with positive testimony.”
In Cave v. The State, 41 Texas, 182, it is laid down that, in cases dependent upon circumstantial evidence, full instruction upon that branch of the law is requisite and essential. It is noticeable that in that case the evidence was not *237wholly circumstantial, and yet the jury were substantially instructed as to that species of evidence.
In Brown v. The State, 23 Texas, 195, in which the evidence was wholly circumstantial, the rule in Webster’s case was not given to the jury ; but the learned judge who presided on the trial, after stating the law as to reasonable doubt very fully, instructed the jury that all the material facts proved to their satisfaction ought to lead to the conclusion that the prisoner did the deed, to-the exclusion of a reasonable belief that he did not or that some other person did it, and that if the evidence satisfied their minds and consciences that the accused did kill the deceased, and did not show that some other person had a motive to do it and might have done it, then it was sufficient to find the fact.
It is true that in Chester v. The State, 1 Texas Ct. App. 702, this court held that in the case before them it was not necessary fo lithe jury to be instructed as to circumstantial evidence; but in that case, which was a case of theft, the evidence was not wholly circumstantial, and the decision must be restricted to the case before the court, and not be construed as the enunciation of a general principle for the guidance of courts in all cases.
The usual rule in relation to circumstantial evidence, which is a familiar one to the profession, cannot be deemed a philosophic dissertation upon the nature and effect of evidence, and therefore within the prohibition of the Code as an invasion of the province of the jury, but is to be regarded rather as a rule of law applicable to all cases in which a conviction is sought upon circumstantial evidence alone, and the giving of which to a jury, in the general language usually employed, cannot specially affect auy one fact in evidence or materially prejudice the prosecution. And when given, enuring solely to the benefit of the defendant, he cannot be heard to complain. It is only another application of the doctrine of reasonable doubt, which the humanity of the law vouchsafes to prisoners on trial, when *238the evidence against them is wholly circumstantial; and an instruction embodying it simply informs the jury what degree of certainty the facts in the evidence must produce in their minds before they can convict, just as a charge upon the reasonable doubt does in ordinary cases. The failure of the court to give an instruction upon this branch of the law was error which will require a reversal of the judgment.
The general charge of the court is complained of as not embodying an accurate definition of murder with express malice, and in failing to define cleai’ly the distinction between the two degrees of murder. As this opinion is already extended in the discussion of other questions, a critical analysis of the charge will not be undertaken. But we are of opinion that, upon another trial, the better practice would be for the court to conform its charge to established precedents in our State, and not undertake a condensation of principles which might omit essentials. While the definition of murder in the first degree as given to the jury might successfully withstand careful analysis, and be upheld as containing the condensed essence of the authorities upon the subject, we are of opinion that the mere difficulty experienced in the attempt at such adaptation sufficiently indicates that fuller explanations should have been given to the jury as to the necessary constituents of the two degrees of murder.
It is never safe to depart from established authorities in giving instructions to a jury, and in prosecutions for murder in this State, the law has been so fully and plainly settled by repeated decisions that courts cannot err if they but employ the language of standard cases in the exposition of principles which are to govern the jury. The other errors assigned are not deemed material.
Because of a failure of the court to charge the law applicable to the case, the judgment is reversed and the cause remanded..
Reversed and remanded.