In his motion for rehearing appellant raises but one question, and that is relative to the court's charge.
Paragraph five of the court's charge is as follows: "Therefore, you are instructed that if you find and believe from the evidence in this case, beyond a reasonable doubt, that the defendant, S. O. Wilson, in the County of Bell and State of Texas, on or about the 7th day of February, A.D. 1938, as alleged in the indictment, did, with his malice aforethought, unlawfully and voluntarily kill Lon Garner by beating said Garner with his hands and fists and kicking him with his feet, and not in self-defense, as that right is hereinafter defined and explained to you, you will find the defendant guilty of murder with malice aforethought and fix his punishment at death or at confinement in the penitentiary for life or for any term of years not less than two, as you may determine and state in your verdict. But unless you do so find and believe or in the event you have a reasonable doubt thereof, then you must acquit the defendant of murder with malice aforethought, and you may next consider whether he is guilty of murder without malice or some lesser offense as hereinafter defined and explained to you." *Page 596
On account of the fact that the instruments used in causing the death of Mr. Garner were not deadly weapons per se, it was appellant's contention that he had no intent to kill Mr. Garner at the time he struck him with his hands and fists and kicked him with his feet, and that it was the duty of the court to incorporate in such paragraph of the court's charge the idea that it was necessary that the jury find that defendant had the specific intent to kill before he could be convicted under the instruction therein.
We think that the appellant answered his own contention when he quoted paragraph ten of such charge, which is as follows: "You are instructed that although you may believe from the evidence in this case beyond a reasonable doubt, if you do, that the defendant Wilson did beat Lon Garner with his hands and fists and kick him with his feet, and was not acting in self defense as that right is hereinafter defined and explained to you, yet unless you further find and believe from the evidence beyond a reasonable doubt that he did so, if he did, with the specific intent then and there to kill the said Garner, then you cannot convict the defendant of either grade of murder, as above defined to you."
It is evident that in construing the court's charge it must be taken as a whole on account of the fact that ofttimes all the law can not be embraced in each separate paragraph thereof, and while it might have been the better policy to have embodied the charge relative to a specific intent to kill in paragraph five, nevertheless we are of opinion that the portion of the charge found in paragraph ten relates back to said paragraph five, and caused the jury to know that before they could find the appellant guilty of either grade of murder, that it was necessary that they find that he had a specific intent to kill Mr. Garner at the time set forth in the indictment.
We are impressed with the soundness of the original opinion herein, and think that it properly disposes of this case, and therefore the motion will be overruled.