The appellant was convicted of murder of the second degree, and his punishment assessed at confinement in the penitentiary for the term of twenty-two years. This case was submitted at the Tyler term, and we have had it under consideration from that time until now, giving it our most serious attention.
There is but one point seriously urged by counsel why the judgment should be reversed, and that is a supposed defect in the charge of the court. After having given the charge, time after time, the most thorough examination commensurate with our humble ability, we are forced to the conclusion that the law of the case was given therein to the jury.
There were two theories — one inculpatory and the other exculpatory. The jury, whose duty it was, passed upon these theories, finding in favor of that of the State. The presiding judge was called upon (by motion for new trial) to review the correctness of their finding. It being approved by him, who heard the witnesses, saw their bearing and manner of testifying, we are not prepared to say that their finding was wrong. If the theory of the State was true, the defendant was guilty of murder, at least, of the second degree. There 'was evidence clearly and satisfactorily supporting that theory, and the jury having by their verdict passed upon and determined which of these conflicting theories was true, we will not disturb their conclusion.
There is no question presented hr the record which has not been ably and exhaustively discussed by this court in cases already reported. Kendall v. The State, 8 Texas Ct. App. 569; Ainsworth v. The State, 8 Texas Ct. App. 532. See also Horbach v. The State, 43 Texas, 258. And see also those cases for thorough discussions of the law bearing on this case. The judgment is affirmed.
Affirmed.