Appellant urges error on the part of the trial court in not submitting in his charge to the jury offenses of less degree which might be included in a charge of murder. No basis for such complaint appears. No request was made of the trial court to submit such lesser offenses, nor was there any exception to the charge for its failure so to do.
Appellant also insists that the verdict fixing a penalty of seventy years is contrary to the evidence in that nothing shows the killing to have been upon malice aforethought, if committed by appellant at all. In this connection he also urges the insufficiency of the testimony generally, to show him guilty.
The court submitted the case upon the theory of circumstantial evidence. In making out its main case the State relied almost entirely upon proof of circumstances deemed sufficient to show appellant to be the party who committed the alleged murder. However, there was testimony from the sheriff and another witness to the effect that appellant told them that he held a gun on deceased while another man beat him to death. It was shown that shortly after the disappearance of the deceased appellant showed up in possession of the car of deceased, same being claimed by appellant as his by purchase, and that appellant disposed of the body and casings of the car as his property. Appellant took the witness stand in his own behalf and testified to his presence at the time of the killing. He asserted that said homicide was committed by a man named Legs, and that any apparent connection with the concealment of the crime by the removal of the body and hiding it, was participated in by appellant, if *Page 34 at all, under coercion and as a result of threats against him. He admitted his association with Legs and the other men who were present in a gambling game which he said led up to the killing. He admitted the appropriation of the car of deceased, which he claimed he thought belonged to the man Legs. He testified to accompanying Legs and the other parties from the house where the killing occurred to the place where the body was covered with a quilt and some boards and left in an outhouse. He admitted going with the others and drinking with them, and remaining with them for some time afterward, and claimed that he then borrowed the car in question from Legs and took it to the town of Rankin, some one hundred miles from the scene of the killing, where, according to the State witnesses, he disposed of the body and other parts of the car to some Mexicans. After appellant concluded his testimony, the State introduced in evidence appellant's written confession in which he made statements contradictory of other testimony appearing in the record, said confession appearing to throw doubt upon appellant's intentional and purposed connection with the killing.
We are of opinion that the State made out a case of murder against appellant entirely aside from the facts appearing in the confession. There is nothing in the record which sheds light on the State's purpose in introducing the confession. No request for any charge concerning same appears in the record, nor any exception to the court's charge for its failure to instruct the jury regarding the effect of any statements made in such confession. We regard the testimony as sufficient to make out a case against appellant by circumstances, showing him guilty as a principal offender in the murder of deceased. If the murder was committed for gain or profit, or to obtain the car or property of the deceased, this would sufficiently support the conclusion of a killing upon malice aforethought. There is nothing in the record to suggest that the mind of appellant was in any such condition for any reason as that he could not entertain or be moved by malice. Nor do we think the statements of appellant in the confession referred to are of such nature or so bind the State as to prevent or interefere with the jury's right to accept as sufficient the inculpatory evidence relied upon to show appellant guilty of the murder.
The motion for rehearing will be overruled.
Overruled. *Page 35