Heard v. State , 24 Tex. Ct. App. 103 ( 1887 )

White, Presiding Judge,

This appeal is from a conviction of both appellants for the murder of A. H. Kinney, their stepfather, the verdict and judgment being for murder of the first degree, with punishment in the penitentiary for life.

But one bill of exceptions was saved at the trial, and that was as to the sufficiency of the charge of the court to the jury. Murder of the first degree was the only grade of the crime called for by the facts and submitted by the court. Ho special instructions were requested by defendants.

The objection urged to the definition, or, rather, to the application of the law of express malice, in that it is general as to “the design to kill,” and does not limit it to a particular design to kill the deceased, is, we think, hypercritical. A charge should be considered as a whole, in judging of its sufficiency. Taken as a whole, this charge is sufficient, especially in the absence of special instructions amplifying it if so desired. Ho one could have possibly been misled as to the party against whom the design to. kill must have been entertained, in order, under the charge, to warrant a finding of express malice. By terms before used, it was declared and thoroughly understood that defendants were on trial for the murder of Kinney and no one else. •

Again, it is objected that the court did not submit the law of circumstantial evidence. This was not a case of circumstantial evidence. If the State’s witnesses are to be believed, statements and declarations amounting to direct confessions of guilt were made on two separate and distinct occasions by one or both defendants—at all events when both were present; and the same thing is shown to have been stated by each of the accused. If the witnesses were credible and these admissions believed, then defendants are each positively condemned out of his own mouth. It was for the jury below to pass upon the credibility of the witnesses. They have done so, and by their verdict they avouch the truth of their testimony, If this testimony is true, then it is sufficient to sustain the verdict and judgment.

Ho reversible error has been manifested on this appeal, and the judgment of tha lower court is therefore affirmed;

Affirmed.