In his motion for rehearing appellant criticises that part of the original opinion wherein we held: "It has been the uniform holding of this court, that in the absence of motive being shown, and the killing or shooting is shown to be without excuse or justification, and is unexplained, the law implies malice." He says this is abstractly correct, but that where the defendant's testimony offers an explanation of the shooting, this principle of law does not apply. If the jury had believed defendant's explanation, this case would not have been before us on appeal, but he would have been acquitted. We thoroughly agree with defendant that it is the law of this State, and mandatory on the court to charge on every theory of defense brought out by the testimony, so it is useless to discuss the authorities cited by appellant. The sole question is, did the court charge on every theory of defense brought out by the testimony? The defendant testified to seeing a man on the bridge, and that he turned back, when the man told him to come on. To quote his exact language he says: "So we turned and went on back, and just as we got opposite to him he reached one hand for my horse and says, `Halt.' He was reaching for my horse and said, `give me your money.' That was on the bridge and I think it was about the middle of the bridge. He was on foot. When he reached and says `give me your money,' he had his other hand in a position like he had something in it, gun or something. I could not see whether it was a gun or what it was. I had this gun in my wallet on the pommel of my saddle. I reached in my wallet and drew it and went to shooting. As to how close this man was *Page 102 to me when I shot him, well, I could have almost put my hand on him; he was about two feet from me I guess. I did not shoot straight down, when I snatched it out of my wallet hanging on the pommel of the saddle I shot in a kind of slanting way. I could not tell whether it was a white man or a negro and I did not know who it was. I shot at him but I did not know whether I hit him. I shot to get away from him. I thought he was about to rob us." This is the way he testified on direct examination, putting the matter in the strongest light for himself. The court submitted this defense to the jury in the following language, after charging on self-defense in an approved form:
"You are further charged in this connection that if you believe from the evidence that Ray Wallace was advancing toward the defendant or was reaching for defendant's horse and demanding defendant to give up his money or words to that effect and under such circumstances the defendant shot the said Ray Wallace then he was justifiable and if you so find you will acquit the defendant, or if upon this point you have a reasonable doubt you will acquit the defendant."
Thus it is seen the court aptly and tersely presented the defense made by defendant. However, appellant insists that as appellant testified on cross-examination that he did not shoot to kill prosecutor but shot to scare him, that the court ought to have instructed the jury that if they believed this to be true they should acquit him. This is not the law. If appellant, by some act or conduct of prosecutor, was not justified in shooting, if he shot at him to scare him it would be a wilful and wanton act, and no one is justified in committing such an act, but it would be an offense under our law, and appellant would be held responsible for the consequences of such an act. Article 51 of the Penal Code provides that the intention to commit an offense is presumed whenever the means used are such as would ordinarily result in the commission of the forbidden act. If appellant shot at prosecutor to scare him, without being justified in so doing, it is an offense. If he shot under the circumstances he stated, the court fully instructed the jury as to the law under those conditions. The contention that the law never presumes anything is not correct, and is not supported by any of our decisions. If an illegal act is shown beyond question and no excuse or justification shown, the law presumes that such person intended the necessary and probable consequence of such an act. Shaw v. State, 34 Tex.Crim. Rep.; Hatton v. State, 31 Tex. Crim. 586; Wood v. State, 27 Texas Crim. App., 393; High v. State, 26 Texas Crim. App., 546; Lane v. State, 16 Texas Crim. App., 172; Aiken v. State, 10 Texas Crim. App., 610; McCoy v. State, 25 Tex. 42. In the case of Hill v. State, 5 Texas Crim. App., 7, this court held:
"We have carefully examined the entire charge, and, take it as a whole, we do not believe it is liable to the first objection made to it by defendant. The doctrine of intent, as it prevails in the criminal *Page 103 law, says Mr. Bishop, an eminent philosophical writer on the criminal law, is necessarily one of the foundation principles of public justice. When one person kills another, the killing must be done with malice aforethought to make the crime of murder. It is a principle of the common law, as old as the law itself, that all homicides are presumed to be malicious until the contrary appeareth from the evidence. This is the law in Texas. In the case of Farrer v. The State, 42 Tex. 265, the Supreme Court says: `It is a familiar axiom of the law that every person is presumed to understand the probable result of his acts. And when an unlawful act is clearly shown to have been done, it is for the defendant to show facts which mitigate, excuse, or justify it, so that a reasonable doubt, at least, may arise on the entire evidence in the case as to his guilt. Hence, when the killing is proved, and it is not shown to have been done under sudden passion, induced by an adequate cause, or under circumstances which excuse or justify it, such killing must be regarded as voluntary and designed, and, therefore, with the malice which the law imputes to such homicide.'"
The motion for rehearing is overruled.
Overruled.