Appellant devotes many pages of his motion for rehearing to a most persuasive argument presenting the contention that the court was in error in disposing of appellant's criticism of paragraph 12 of the court's charge. Appellant's premise is that said paragraph is in direct contradiction of other portions of the charge and that therefore our opinion is not in harmony with Barbee v. State, 58 Tex.Crim. Rep., 124 S.W. 961, and Henry v. State, 54 S.W. 592, and contrary to the principle announced in LeMasters v. State, 81 Tex.Crim. Rep.,196 S.W. 829. We cannot regard the criticised charge as being in direct contradiction of other portions of the instructions. It is not aptly worded and standing alone might be misconstrued; but the charge must be considered as a whole. (See note 158, Art. 658, Vernon's C. C. P., Vol. 2, p. 252.) In giving effect to Art. 666, C. C. P., it is the duty of this court to have in mind all the evidence and the instructions of the court in its entirety, and from all these try and reach a fair conclusion as to whether some portion of the charge which may be subject to criticism was calculated to injure the rights of appellant. It is manifestly impracticable to set out in the *Page 353 opinion all the evidence or all the instructions; the best we can hope to do is to state our deliberate judgment after considering the entire record. A further painstaking examination of the facts and the charge confirms us in the belief that the view of the matter expressed in our original opinion is correct.
We think the Collins case (299 S.W. 403), cited in our former opinion, controls the point made upon the court's definition of malice. The jury could not have been confused upon the issue that the offense might have been manslaughter, although the killing was intentional. The court pointedly told the jury that if appellant in a passion aroused by adequate cause shot at deceased "with intent to kill him" he would only be guilty of manslaughter.
At the same time Junek was killed and as a part of that same transaction, appellant also killed McAlpine and wounded Mrs. McAlpine. Appellant was on trial for killing Junek. He again urges that details of such killing, and of those incident to the killing of McAlpine, and the wounding of the latter's wife, and proof of the wounds inflicted on the two latter parties, and the surroundings and conditions immediately following the tragedy at the place of the killing, should not have been admitted because prejudicial to the appellant because the killing of Junek was admitted to have been unlawful. This same contention in principle was made in Simpson v. State, 97 Tex. Crim. 57, 263 S.W. 273, but was not sustained.
We have again examined with patience all the questions presented in appellant's motion. In some instances the state's inquiry may have extended with unnecessary particularity into some questions, but we find nothing which to our minds would justify the court in ordering a reversal.
The motion is therefore overruled.
Overruled.
ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.