Appellant has filed an able brief in connection with his motion for rehearing, and cites us to many cases. We did not take up and analyze each decision cited by him in the original opinion. Appellant, while he does not dispute that the charge given in this case is almost an exact copy of the charge given in the Miller case, cited in the original opinion, yet he insists that the opinion in that case and the opinion in this case, and cases cited herein, are in conflict with some other decisions of this court. He cites us to the cases of Smith v. State, 9 Texas Crim. App., 150; Robertson v. State, 9 Texas Crim. App., 209; Blocker v. State, 9 Texas Crim. App., 279; Wallace v. State, 9 Texas Crim. App., 299. By reference to all those cases it will be seen that the court was criticising the definition of reasonable doubt as given. In this case the court did not give any definition of reasonable doubt, but charged the jury: "The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and if you have a reasonable doubt as to his guilt of any offense comprised in the indictment, you will acquit The defendant." This charge is in the language of the Code of Criminal Procedure (article 785) and is in conformity with the decisions above cited by him. He also refers us to the case of Comegys v. State, 62 Tex.Crim. Rep., 137 S.W. Rep., 349, an opinion rendered by the writer of this opinion. In this case in applying the law of reasonable doubt to the whole case the language appended to it in the Comegys case is not used by the court, but the law is given as laid down by the Code, which all the decisions say is the better practice.
We are next referred to the Shamberger case, 6 S.W. Rep., 540, in which the court said the charge in that case required the jury to believe that the defendant was not guilty; that be did not kill the deceased, but that deceased killed herself. If the charge did it was erroneous as held by the court. In this case the burden is not placed on defendant to prove any fact, but the court specifically instructed the jury: "The burden rests upon the State to establish the guilt of the defendant by legal evidence beyond a reasonable doubt; and if after considering all of the evidence before you, you have a reasonable doubt of his guilt, you will acquit." This war given immediately following the charge on self-defense, copied in the original opinion, and in addition to the usual charge on presumption of innocence and reasonable doubt which was also given.
We are also cited to the case of Maloney v. State, 57 Texas Crim. *Page 190 Rep., 425, 125 S.W. Rep., 36, in which the court held that as the charge of the court required the jury to find affirmatively that "defendant was acting in a peaceful manner" before they would be authorized to acquit. By reading the charge copied in the original opinion, that when the court applied the law of self-defense to the case he instructed the jury not only "if they believed from the evidence" the given state of facts but in said paragraph also instructed them or "you have a reasonable doubt thereof." This did not shift the burden of proof. All the other cases cited by appellant will be found cited in the case of Harris v. State, 55 Tex.Crim. Rep., 117 S.W. Rep., 839. We do not deem it necessary to discuss each of them, but by reference to each of them it will be seen that in each of the cases it was where the court required the jury to affirmatively find that the defendant on trial did or did not do a specific thing before he would be entitled to an acquittal, as in the Harris case the jury was instructed that before they would be authorized to acquit they must find that Harris "did not make an assault and did not put in fear, etc." The charge in this case is not subject to such criticism as will be seen by reading the charge copied in the original opinion. With the rule laid down in those cases that the charge on self-defense should not require it be affirmatively proven that the defendant did not do a certain act, before he would be entitled to an acquittal, we agree, and the charge in this case is in conformity with those decisions when read as a whole. As announcing the correct rule this court held in Powell v. State, 28 Texas Crim. App., 393: "With respect to the charge on threats and self-defense, the objection is urged that it required the jury to believe the facts existed which constituted self-defense before they could acquit defendant, whereas the law is that if they entertained a reasonable doubt of the existence of such facts they should acquit him. In this case the court charged the rule of reasonable doubt generally making it applicable to the whole case, and under repeated decisions of this court this was sufficient." This was an opinion by Judge Willson, in which he cited the opinion of Judge Hurt in the McCullough case, 23 Texas Crim. App., 636, in which file same rule was laid down and Ashlock v. State, 16 Texas Crim. App., 13.
In the case of Edens v. State, 41 Tex.Crim. Rep., where in the charge of the court on self-defense, the court said: "Appellant in his tenth bill of exceptions complains of the charge because said charge required the jury to find affirmatively from the evidence the existence of the facts necessary to constitute self-defense, and contends the court should have charged that if they believed said facts existed, or had a reasonable doubt thereof, they would find defendant not guilty. It is not necessary under the law of this State to place the charge of reasonable doubt at the end of each charge. We think the court's charge wherein be tells the jury `Defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt and in case of a reasonable doubt in your Minds as to defendant's *Page 191 guilt you will acquit him, and say by your verdict not guilty,' is a sufficient application of the law of reasonable doubt to the different phases of the evidence." The charge in that case was not near so favorable to the defendant as is the court's charge in this case. (See also Carroll v. State, 48 Tex. Crim. 155; Hull v. State, 80 S.W. Rep., 380; Ford v. State, 56 S.W. Rep., 338; Matthews v. State, 42 Tex.Crim. Rep.; Monceveis v. State, 70 S.W. Rep., 94; Gray v. State, 68 S.W. Rep., 7199; McKay v. State, 32 Tex.Crim. Rep.; Robinson v. State, 63 S.W. Rep., 870.) Many other cases might be cited laying down the same rule, and one can not read those paragraphs of the charge of the court copied in the original opinion presenting the defensive theory of defendant, and find where by any proper construction the burden of proof was shifted to defendant, but when read as a whole the charge fully tells the jury in no uncertain terms that the guilt of defendant must be proven beyond a reasonable doubt, and if they have a reasonable doubt as to his guilt or the truth of the defensive theory they will acquit. The defense was affirmatively presented in a clear and logical manner, and in terms frequently approved by this court. And the court at the conclusion of the charge on self-defense instructs the jury that the burden is upon the State to establish the guilt of defendant beyond a reasonable doubt, and if they have a reasonable doubt of his guilt they will acquit him. This was given in addition to the general charge on presumption of innocence and reasonable doubt.
As to the only other contention of appellant in his motion for rehearing, that the doctrine of reasonable doubt should have also been included in the paragraph of the charge on murder in the second degree, the paragraph on manslaughter, etc., be cites us no authority, and the decisions of this court are all against his contention. It has always been held that where the court in his charge instructs the jury as to reasonable doubt as to degrees submitted, this is sufficient, some cases holding that where a charge is requested, a failure to so charge will not present reversible error. (Frizzell v. State, 30 Tex.Crim. Rep.; Hall v. State, 28 Texas Crim. App., 146; Green v. State,52 Tex. Crim. 46; Cockerell v. State, 32 Tex.Crim. Rep..) However, in this case, although no instructions were requested, the court did instruct the jury: "You are further instructed that the reasonable doubt also applies between the different offenses comprised in the indictment; so if you find the defendant guilty and have a reasonable doubt under the evidence as to what offense he has been guilty of, if any, you will resolve such doubt in favor of the defendant, and find him guilty of the lesser and lower offense as between such offenses as you may be in doubt concerning." This was followed by a charge that if they had a reasonable doubt of his guilt they would acquit him. This instruction has been approved in a number of cases. (Green v. State, 52 Tex.Crim. Rep.; Wallace v. State, 97 S.W. Rep., 1051, and cases there cited.) *Page 192
It has not been infrequently urged that this court should require that each paragraph of the court's charge specially apply the doctrine of reasonable doubt, but this the court has always declined to do, and has always held that when the charge as a whole applies to the doctrine of reasonable doubt as between degrees in a homicide case and then applies the reasonable doubt to the whole case, this will be sufficient. As said in some of the cases it might be a commendable practice for the trial courts to do so, but if not done and the charge is so drawn that the jury is informed that the burden is upon the State to prove its case beyond a reasonable doubt, and if they have a reasonable doubt as to defendant's guilt, and have a reasonable doubt as to the defensive theories, this court will not reverse the case. The part of the charge copied in the original opinion demonstrates that was done in this case.
The motion for rehearing is overruled.
Overruled.
Davidson, Presiding Judge, not sitting.