On Motion for Rehearing.
Hurt, Judge.We have read carefully the motion and brief thereon, and have listened with pleasure and interest to the arguments for and .against the same.
As in the first opinion, so in this, we will discuss but one question—all the other supposed errors being met by the brief for the State.
As there is some evidence tending to reduce the offense from murder of the first to murder of the second degree, though its force be ever so weak, trivial, or light, counsel for the motion contend that it is not only the duty of the court below to instruct the jury on the lesser degree, but *559that failure to so instruct is reversible error whether or not the omission was objected to at the time.
We concede that under such a state of case it would be the duty of the court to charge on murder of the second degree, because this is required by the statute. But as there were no objections made to the charge (because of this omission) at the time, so as to bring the case within the provisions of article 685 of the Code of Procedure, does it follow that the judgment must be reversed whether the defendant excepted to the charge or not? This is the question; and we understand that counsel for the motion assume the affirmative, contending that if there be any evidence tending to present murder of the second degree or any degree of homicide less than murder of the first degree, the judge must charge on the less degree or degrees whether requested or not, and that a failure to do so will work a reversal of the judgment, though the charge was not excepted to at the time.
If this proposition be correct the party who fails to except to the charge occupies a position as favorable as would one who objects. Diligence in bringing forward the objection at the earliest opportunity has no reward— the careful and the diligent and the careless or negligent standing on the same plane.
In this connection we call attention to the opinion of Roberts, C. J., in Bishops's case, 43 Texas, 390. He says: “This difference in the rule, dependent upon the time when the objection, to the action of the court is made, is in harmony with the rules of judicial proceedings generally, that a party who makes an objection at the proper time, which is usually the first practical opportunity, shall have his objection more favorably considered than if it had been inopportunely delayed.'' In the above the Chief Justice is wrong if the counsel is right.
The statute, as is well known to the profession, provides that if there be error in the charge in a felony case, and it is excepted to at the time of the trial, the judgment should be reversed. But suppose there be error and the accused fails to except, will the judgment be reversed in all such cases? By no means. We will let Chief Justice Roberts state the rule applicable to such a state of case: “It is to be particularly noticed that the record shows, and properly by a bill of exception shows, in this casg, that this charge was excepted to by defendant’s counsel at the time of the trial, and before the case had been submitted to the jury, and before they had retired to consider of their verdict; and that thus an opportunity was given to the judge to correct or withdraw the charge if he had deemed it to have been improper, upon a reconsideration of it then made before the final submission of the case to the jury. This, in reference to the provisions of our Code of Criminal Procedure, will be found to be an important consideration in this case on appeal to this court, by the exceptions having been made, and shown by the bill of exceptions to have *560been made at the time of the trial, and to be much more beneficial to the-defendant than if not then made, but made only afterwards on a motion for a new trial."
“If such a charge is not excepted to at the time of trial, but is presented in a motion for new trial, which is the next point at which it could be presented, then its consideration by this court would be subject to another and a very different rule, which, would be whether or not such charge was an error which, under all the circumstances, as exhibited in the record, was ‘calculated to injure the rights of the defendant,’ and which is prescribed as one of the grounds for the granting of a motion for a new trial, in the following language: ‘ Where the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.”’
Of what degree of force must the evidence be that tends to establish an offense, or tends to mitigate the offense charged in order to require a-charge applicable thereto? Chief Justice Roberts says that if its force is. deemed to be very weak, trivial, or light, and its application remote, “the court is not required to give a charge upon it.” “If, on the other hand, it is so pertinent and favorable as that it might be reasonably supposed that the jury could be influenced by it in-arriving at their verdict, the court should charge so as to furnish them with the appropriate rule of law upon the subject.” Bishop v. The State, 43 Texas, 390. Hence, unless the evidence tending to present a less degree of an offense, or any theory of defense, be so pertinent and forcible that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, a failure of the court to charge thereon would not be ground for reversal in the absence of exceptions.
This position is in exact harmony with the first opinion in this case, and in accord with Bishop’s case, supra, and a number of cases decided by this, court, notably Cunningham’s case, 17 Texas Court of Appeals, 87; Elam’s case, 16 Texas Court of Appeals, 34; and Beeper’s case, decided at the present term, but not yet reported. See also Johnson’s case, 27 Texas, 758.
Boose expressions upon this subject can be found in the opinions of this court, but the principle is well settled and is absolutely correct, whether this court has always adhered to it or not, that in the absence of exceptions to the charge of the court, for this court to reverse, the evidence tending to present a phase of the case or theory favorable to the accused must be so pertinent and favorable that it might reasonably—not possibly —be supposed that the jury could be influenced by it in arriving at their verdict. Unless the evidence be of such a character no injury appears, no injury is probable—not possible, but probable—and unless this appears-there is no ground for reversal; and to reverse in the absence of probable injury would be contrary to principle. This would be the rule as to error in the charge of the court though excepted to, but for the statute..
*561Was the evidence presenting murder of the second degree of such force and pertinency as to render it reasonably probable that the jury would have been influenced thereby in arriving at their verdict? As there was no exception to the charge this is the vital question. The counsel for the motion in their argument carefully avoided a discussion of this question when it was the very issue for discussion, and to determine this issue the facts must be carefully examined. When these are consulted, instead of presenting murder of the second degree with such force and pertinency as would render it reasonably probable that the jury would be influenced thereby in arriving at their verdict, when taken as a whole, this degree of homicide is'very feebly or lightly indicated. This being the case no injury is probable, and hence no reversible error is made manifest.
We are of the opinion that there is no reason why the motion for rehearing should be granted, and it is therefore overruled.
Rehearing refused.
Judges all present and concurring.