Conflicting theories, tending on the one hand to fix the guilt of the defendant at least to the extent found by the jury, and on the other hand to absolve him from punishment altogether, are legitimately deducible from the evidence laid before us ; but every legitimate conclusion that was possible to be arrived at by the jury seems to have been anticipated by the learned judge below, and to have been presented to their consideration by a charge characterized by perfect completeness and accuracy.
At this day it certainly cannot constitute a subject for serious complaint, if, upon trial of a defendant for a capital felony, upon a state of facts which may justify a conclusion that the homicide was perpetrated with express malice, the court sees proper to instruct the jury that “ former grudges, deliberate compassings, and concerted schemes to kill or do great bodily harm” are illustrative of the existence of that *528species of malice attendant upon or promotive of the act; or that, when the facts show an antecedent malice, and a fresh provocation, the law, in its mercy, presumes in favor of the.prisoner that the killing was upon the fresh provocation. Nor can complaint be heard, in a case involving the proper predicate of facts, if the jury are instructed “ that if a person, with deliberate mind, forms a design to kill or do great bodily harm to another, and, with the design so formed, enters into a conflict to execute such purpose, and kills in pursuance of such design, the killing is with express malice.” These propositions may be classed as truisms in the law, and abstractly correct beyond criticism.
It is urged, however, that these charges were calculated to mislead the jury, and cause them to take it for granted that malice on the part of defendant had been established, or at least that it was clear to the mind of the court that the homicide was committed through malice. If the criticism in this instance was just, it would be a difficult if not an impossible task to frame a series of instructions to a jury in most capita] cases of homicide, and the legislative department "ought to be invoked to furnish a speedy remedy for so serious a public grievance.
But the criticism is not just. The charge of the court is absolutely free from any intimation, positive or inferential, as . to the weight of the testimony or any fact embraced therein, and the jury were properly left to determine for themselves the guilt or innocence of the defendant, as it appeared to them from the whole evidence, under the law as given them. Under a charge most favorable to the defendant, and presenting most accurately the law governing every issue in the Case, they have reached a determination adverse to defendant’s innocence; and in this state of the record, this court has invariably refused to disturb the verdict, if not against the evidence. Bank v. The State, 7 Texas Ct. App. 591, and authorities cited
Nor is any error perceived in that portion of the charge *529which instructed the jury that where it is shown that a homicide was intentionally committed, and the facts show that it was done neither with express malice nor under circumstances excusing, justifying, or mitigating the act, that the law in that event implies malice, and the offence is murder in the second degree. This has been the established doctrine with us from the formation of our first court. Harris v. The State, ante, p. 90.
Defects in the minutes of the court as to the formal presentment of the indictment cannot be taken advantage of after verdict. Johnson v. The State, 7 Texas Ct. App. 210; Jinks v. The State, 5 Texas Ct. App. 68; Houillion v. The State, 3 Texas Ct. App. 538.
It would be a profitless task to enter into a minute discussion of the evidence, in answer to appellant’s ingenious argument as to its insufficiency. The fact of killing is conceded, and if is only insisted that the evidence shows that the homicide is justifiable. Viewed from one stand-point, this may be so, and the jury might have found in the evidence a sufficient basis for such a finding. But from the entire evidence in the case, a conclusion that appellant is guilty of the offence found, if not of a higher offence, is equally legitimate. Under our practice, it was for the jury to say, amid •conflicting theories, which was the correct one; and their verdict is amply supported by the testimony.
The judgment is affirmed.
Affirmed.