In this case the appellant was convicted in the lower court of murder in the first degree and the death penalty assessed. The victim of the murder was his wife. While the evidence is wholly circumstantial in character, we have been constrained after a mature consideration of the saíne to conclude, as did the court and jury at the trial below, that the defendant is guilty of murder in *582the first degree, the murder of his wife, and under circumstances of peculiar enormity and atrociousness. While the State has been unable to show positively the immediate cause or motive for the killing, yet it is shown that he had been in the habit of mistreating his wife at times extending through the whole course of their marital relations. The evidence shows that the woman was killed by blows from an ax, her head being almost severed from her body, and there was no sign of any contest or struggle of any character about the room at the time her body was found. There are no bills of exception in the record to the admission or exclusion of testimony. The charge of the court is a full, clear, and complete presentation of the law applicable to the facts, and there was no error in refusing the special requested instructions, the law having been fully given in the general charge.
The evidence solely presented a cáse of murder in the first degree, and the court only submitted the issue of murder in that degree. Under such circumstances the court, where murder in the second degree is not raised or even suggested by the evidence, is fully warranted in declining or refusing to submit that degree to the jury. . Caldwell v. The State, 28 Texas Ct. App., 566.
Defendant has had a fair and impartial trial, so far as the same is disclosed by the record before us, and there being no reversible error the judgment is in all things affirmed.
Affirmed.
Judges all present and concurring.