Smith v. State , 15 Tex. Ct. App. 139 ( 1883 )

Willson, Judge.

1. It was not error for the court to omit from its charge to the jury the law of murder in the second degree. There was no evidence fairly presenting that issue. If the defendant was guilty at all, he was clearly guilty of murder in the first degree. We think the evidence of express malice, and of motive actuating the defendant in acting together with Clinton in the commission of the murder, is amply sufficient to show murder in the first, and to exclude murder in the second degree. Where the evidence shows murder in the first degree, as we are clearly of the opinion that it does in this case, a charge on any lower degree of homicide is not required, unless there be some evidence which fairly raises an issue as to such lower degree, and we find no such evidence in this record. (Washington v. The State, 1 Texas Ct. App., 647; Hubby v. The State, 8 Texas Ct. App., 597.) “ It is the duty of a trial judge to measure his charge by the evidence adduced, and to give instructions to the jury as to every legitimate deduction to be drawn from the evidence; but, when he has done this, the law’s demands are satisfied.” (Lum v. The State, 11 Texas Ct. App., 483.) It has been well said, however, that in all prosecutions for murder, generally, it is the safer practice to instruct as to both degrees.

2. Other objections to the charge of the court have been presented in argument by counsel for defendant, but no exceptions were taken and saved at the time the charge was given to the jury, and no additional instructions were requested by the defendant, and if there be any error'in the charge, it is not such an one as was calculated to injure the rights of the defendant, but after a careful scrutiny of the charge, we have failed to perceive any material error whatever; on the contrary, we think it was full, fair, correct, and directly applicable to the facts in evidence.

Opinion delivered November 24, 1883.

3. We think there was no error in overruling the defendant’s motion for a new trial; but, if there was, the action of the trial court would not be revised by this court unless the exercise of the discretion of the former court had been abused to the defendant’s prejudice; because it appears from the record that the motion for new tr,ial was not filed within the time required by law. (Code Crim. Proc., Art. 779; White v. The State, 10 Texas Ct. App., 167.)

There being no error apparent, in the record, the judgment is affirmed.

Affirmed.