It is argued persuasively in the motion for rehearing that if this case had been tried at a time when manslaughter and the lower grades of assault had not been barred by the statute of limitations appellant would not have been convicted of murder but of some lower grade of assault. This may be true but the matter is entirely speculative. We can not agree with appellant's further contention made in this connection that the evidence does not sustain the conviction for murder. We find proof that after depredations on his melon patch appellant had contemplated the setting of a "trap gun" and in fact had gone so far as to prepare the trap but had not yet placed the gun therein; when appellant found deceased in his melon patch he said, "Oh, yes, God-damn you, you are in my melon patch and I am going to kill you."
It is also shown that after the shooting a witness asked appellant if he killed anybody to which the reply was made. "I don't know, I shot to kill and I know I hit them."
It is further in proof that in speaking about the homicide later appellant said: "It wouldn't have happened if I had known who it was. I thought it was _______. I was after somebody else, I thought I was getting another boy."
The foregoing evidence together with the other circumstances in proof warranted the jury in finding appellant guilty of murder.
Appellant appears to rely largely upon the case of Teague v. State, 84 Tex.Crim. Rep., 206, S.W. Rep., 193. As requested we have carefully examined this case and are unable to find anything therein contrary to the views expressed by us in the original opinion or in conflict with the law as given in charge to the jury by the learned trial judge. It appears to have been unnecessary for the court to give special charge number two requested by appellant. The principle of law therein contained was specifically submitted to the jury *Page 347 in paragraph twelve of the main charge directing the jury in substance that if appellant fired his gun on the occasion in question without any intent to shoot deceased but with the purpose of frightening him and that the firing of the gun was calculated under the circumstances to effect that object that appellant would have been guilty only of a simple assault. We find no difference in the legal effect of the charge given and the one refused.
Appellant lodges complaint at the procedure of the learned trial judge in having instructed the jury that if they should believe appellant to have been guilty either of manslaughter, aggravated assault or simple asault, they must acquit him as those offenses were barred by the statute of limitations. As we understand it the proposition urged is that the court should have permitted the jury to return a verdict for manslaughter or some grade of assault if they found appellant to be guilty of such under the instructions of the court and then have left it to appellant to say whether he would accept the verdict or interpose his plea of limitation later. We can not agree to the soundness of this contention. The courts are not called upon to do a useless or unnecessary thing and the learned trial judge recognized that all offenses included under the indictment were barred save that of murder, and it was his duty to instruct the jury as he did.
After carefully reviewing the record we are confirmed in our views that proper disposition has been made of the case, and the motion for rehearing is overruled..
Overruled.