The only questions raised on appeal in this case are objections urged to supposed defects in the charge of the court as given to the jury. It is objected that the charge defined "murder in the first degree" and "express malice," when this issue was not in the case, appellant having been previously acquitted of murder in the first degree. If any error was committed in this direction — which we do not concede — it was fully cured by the court expressly stating to the jury that the defendant had been acquitted of murder in the first degree, and in applying the law solely to murder in the second degree, as it might be evidenced by the facts adduced on the trial.
The court did not err in instructing the jury as to the law of perfect as well as imperfect self-defense. In our opinion the evidence called for such a charge. Meuly v. The State, 26 Texas Ct. App. 274[26 Tex. Crim. 274]. And the same may be said with regard to the charge relative to the defendant's provoking the difficulty. Having given the law fully in reference to this latter phase of the case, it was no error to refuse to give in charge defendant's requested instruction.
Defendant testified in his own behalf on the trial. His counsel asked of the court a special requested instruction, as follows. "Under the law, a defendant in a criminal case has the right to testify in his own defense. The jury are the exclusive judges of the credibility of his testimony, and the weight to be given to it. As a witness, the defendant is to be judged as other witnesses are judged and weighed, viz., by their appearance, demeanor on the stand, and the facts and circumstances surrounding them." This instruction was given by the court, with the following words added thereto by the judge: "Given with the additional statement, that in determining the credibility of the defendant, who testifies in his own behalf, his interest in the issues involved is to be considered."
It is urged that the court erred in making this addition to the special instruction as asked by defendant. Had the court of its own motion given the special instruction, without being requested to do so, we, perhaps, would have held that the instruction was erroneous, because it is error to single out and instruct upon the evidence of any particular witness in a case; but the defendant's counsel requested the instruction, and in making the additional statement the court did not render the instruction subject to the objection that he was singling out a particular witness in the case, and consequently such objection is not tenable. What the court added to the special instruction was clearly the law, and, if he intended *Page 167 giving the special instruction at all enunciatory of the principles of law pertaining to the subject, then his addition to it only tended to make it more complete and clear to the jury, by informing them what their whole duty would be in determining the credibility of the defendant's testimony. Under the circumstances presented, we do not believe that the supposed error in adding to the special instruction is maintainable.
We have given this case our mature consideration, in the light of the able brief filed by counsel for appellant, and our conclusion is that the charge of the court is a full, fair, complete, and ample presentation of the law upon all the legitimate issues raised by the evidence in the case. We have been unable to find any error of omission or commission in the conduct of the trial of this case, which in our opinion would warrant a reversal of the judgment, and it is therefore affirmed.
Hurt, J., concurs. Davidson, J., enters disqualification, and did not sit in this case.
[After the above opinion was delivered, White, Presiding Judge, having resigned, Simkins, J., was appointed; and he and Presiding Judge Hurt having disagreed on the motion for new trial, Hon. L.H. Brown was appointed Special Judge in the case. — REPORTER.]
ON MOTION FOR REHEARING.