
    HENDRICKS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1913.
    Rehearing Denied March 19. 1913.)
    1. Homicide (§ 340) — Conviction ox Mur-deb in Second Degree — Distinctions Regarding FlRST-DEGREE MUEDER.
    Where defendant was convicted of murder in the second degree, he cannot complain of instructions as to murder in the first degree. _ [Ed. Note. — For other cases, see Homicide", Cent. .Dig. §§ 715-720; Dec. Dig. § 340.]
    2; Homicide (§ 23) — “Murder in the Second Degeee'’ — “Implied Malice.”
    In a homicide case, the court properly defined murder in the second degree to be an unlawful killing, where express malice is not shown beyond a reasonable doubt and the facts do not tend to mitigate, excuse,'or justify the act, in which case malice, which is an element of murder in the second degree, is implied; implied malice being that which the law imputes to certain acts.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 35, 39, 40; Dec. Dig. § 23.
    
    For other definitions, see Words and Phrases, vol. 4, pp. 3433-3434; vol. 8, p. 7682; vol. 5, pp. 4641-4642; vol. 8, p. 7727.]
    3. Ceiminal Law (§ 800) — Instructions— Definitions. ■ ■
    In a homicide case, the court in defining murder in the second degree need not define words “tend to mitigate, excuse or justify the acts” used therein, where it also charges fully on manslaughter and self-defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. § 800.]
    4. Criminal Law (§5 763, 764) — Instructions — Weight of Evidence.
    An instruction that the law does not further define murder in the second degree than that if the killing be shown to be unlawful, and there is nothing in the evidence on the one hand showing express malice, and on the other hand nothing that will reduce the killing below the grade of murder, then the law implies malice, and the homicide is murder in the second degree, is not upon the weight to be given the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764; Homicide, Cent. Dig. §§ 579, 648.]
    5. Criminal Law (§ 822) — Instructions— Construction.
    It was not necessary in a paragraph of an instruction to define “adequate cause” if it was defined later in the charge, as the charge of the court must be construed together; and, if as a whole it fairly defines the words and submits the issues, it is sufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    6. Criminal Law (§ 789) — Instructions— Reasonable Doubt.
    Where the court in charging on manslaughter charged that, if the jury find “beyond a reasonable doubt that defendant had adequate cause,” etc., you will find him guilty of manslaughter, but in the next paragraph charged that if they believed beyond a reasonable doubt that defendant was guilty of homicide, but have a reasonable doubt as to whether it was murder or manslaughter, they should only find him guilty of manslaughter, the instruction was not erroneous, as1 not giving him the benefit of the doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1904-1922, 1960, 1967; Dec. Dig. § 789.]
    Appeal from Criminal District Court, Dallas County ; Barry Miller, Judge.
    Lawrence Hendricks was convicted of murder, and he appeals.
    Affirmed.
    W. L. Crawford, Jr., J. C. Muse, C. F. Greenwood, R. B. Allen, and Albert Walker, all of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with murder, and, when tried, was convicted of murder in the second degree, and his punishment assessed at 15 years’ confinement in the state penitentiary.

There were no bills of exception reserved to the admissibility or rejection of any testimony offered, but in the motion for new trial there are many complaints to the charge of the court as given and refusal of the court to give some special charges requested.

As to the complaints of that portion of the charge relating to murder in the first degree, we do not deem it necessary to discuss them, as appellant was convicted of murder in the second degree only, and the error, if error there be, could not have injuriously affected appellant. However, we have carefully read that portion of the charge, and it is couched in language frequently approved by this court. See authorities cited in sections 418, 419, 420, and 421 of Branch’s Crim. Law.

In defining murder in the second degree, the court instructed the jury: “The next lower grade of culpable homicide to murder in the first degree is murder in the second degree. Malice is also a necessary ingredient of the offense of murder in the second degree. The distinguishing feature, however, so far as the element of malice is concerned, is that in murder in the first degree malice must be proved to the satisfaction of the jury beyond a reasonable doubt as an existing fact, while in murder in the second degree malice will be implied from the fact of an unlawful killing. Implied malice is that which the law infers from or imputes to certain acts, however suddenly done. Thus, when the fact of an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, not tend to mitigate, excuse, or justify the act, then the law implies malice, and the murder is in the second degree; and the law does not further define murder in the second degree than if the killing is shown to be unlawful, and there is nothing in evidence on the one hand showing express malice, and on the other hand there is nothing in evidence that will reduce the killing below the grade of murder, then the law implies malice, and the homicide is murder in the second degree.”

This definition of murder in the second degree, where the court submits also the issues of manslaughter and self-defense, has been so often approved we hardly deem it necessary to discuss the criticisms thereof. Barton v. State, 53 Tex. Or. R. 445, 111 S. W. 1042; McGrath v. State, 35 Tex. Or. R. 423, 34 S. W. 127, 941; Smith v. State, 45 Tex. Or. R. 553, 78 S. W. 694; Oarson v. State, 57 Tex. Or. R. 398, 123 S. W. 590, 136 Am. St. Rep. 981; Harris v. State, 8 Tex. App. 90; Smith v. State, 48 Tex. Or. R. 250, 89 S. W. 817; Hernandez v. State, 53 Tex. Or. R. 469, 110 S. W. 753. However, we will say that, when the court fully charged on manslaughter and self-defense, it was wholly unnecessary for him to define in these paragraphs the meaning of the words “tend to mitigate, excuse or justify the acts,” and the paragraphs are not upon the weight to be given the testimony. '

The court in submitting the issue of murder in the second degree, after defining it as above stated, instructed the jury: “If you believe from the evidence beyond a reasonable doubt that the defendant in the county of Dallas and state of Texas on or about the 26th day of January, 1909, as alleged, with a deadly weapon, or instrument reasonably calculated and lilrely to produce death by the mode and manner of its use, in sudden passion aroused without adequate cause, and,not in defense of himself against an unlawful attack, real or apparent, reasonably producing a rational fear or expectation of death or serious bodily injury, and not under circumstances which would reduce the offense to the grade of manslaughter, with intent to kill, did unlawfully and with implied malice shoot with a pistol, and thereby kill M. B. Olark as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the state .penitentiary for any period that the jury may determine and state in their verdict, provided it be for not less than five years.” This submission of the issue was in full compliance with the form recommended by this court in Best v. State, 58 Tex. Cr. R. 330, 125 S. W. 909. It was not necessary to define “adequate cause” in this paragraph. Subsequently in the charge these words were fully defined, and in considering the charge of the court all of it must be construed together, and, if it as a whole fairly defines the words and submits the issues raised by the testimony, it is sufficient. The other criticisms of the charge on murder in the second degree are hypercritical.

The charge on manslaughter in this case, if anything, was more favorable to appellant than called for by the evidence, and the criticisms thereof, when the charge is construed as a whole, are unauthorized. Aft-1 er defining “adequate cause,” telling the jury that, if by adequate cause sudden passion was aroused, the defendant would be guilty of no higher degree of offense than manslaughter, the court instructed the jury: “If you believe from the evidence beyond a reasonable doubt that the defendant, with a deadly weapon, in a sudden passion arising from an adequate cause, as the same has been hereinbefore explained, and not in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, did in the county of Dallas and state of Texas on or about the 26th day of January, 1909, as alleged, did with a pistol shoot and thereby kill M. B. Olark, the deceased, as charged in the indictment, you will find the defendant guilty ■of manslaughter, and assess his punishment at confinement in the state penitentiary for any term of not less than two nor more than five years.” The court further instructed the jury in his charge: “If from the evidence you are satisfied beyond a reasonable doubt that the defendant is guilty of murder, but have a reasonable doubt whether it was committed upon express or implied malice, then you must give the defendant the benefit of such doubt, and not find him guilty of a higher grade than murder in the second degree. Or if from the evidence you believe, beyond a reasonable doubt, that the defendant is guilty of some grade of culpable homicide, but you have a reasonable doubt whether the offense is murder of the second degree or manslaughter, then you must give the defendant the benefit of the doubt, and in such case, if you find him guilty, it could not be of a higher grade of offense than manslaughter.”

The contention is that in the .paragraph first above copied the court placed upon the defendant “the burden to prove beyond a reasonable doubt that adequate cause and sudden passion existed” before they would be authorized to reduce the offense to manslaughter. It is true, as contended by. appellant, that manslaughter is in the nature of a defense against murder in the first or second degree, and, where the state introduced testimony which would authorize a conviction of murder, the defendant would be authorized to introduce evidence to reduce the offense, which would show the offense of no higher grade than manslaughter, and, if he did do so, it would be the duty of the state to prove beyond a reasonable doubt that he was guilty of the higher grade of offense before the jury would be authorized to so find, and it would also be the duty of the court to inform the jury in his charge that, if there was a reasonable doubt in the premises, to give the defendant the benefit of such doubt. But in the paragraphs above quoted, when taken together, we think, the court gave defendant the benefit of such doubt. Before the jury would be authorized to convict tlie defendant of any offense, they must find the facts which would authorize it in so doing beyond a reasonable doubt under our law, and the court so instructed the jury as to all three degrees of unlawful homicide. Then the court instructed the jury that, if they had a reasonable doubt as to what degree of unlawful homicide defendant was guilty, to give the defendant the benefit of such doubt, and not find the defendant guilty of any degree of unlawful homicide than that of which they had no doubt. We are' cited by appellant to the case of Huddleston v. State, 54 Tex. Cr. R. 93, 112 S. W. 64, 130 Am. St. Rep. 875, as sustaining their contention. We do not think that ease, when construed in connection with the facts and the charge as there given, sustains their contention in this ease,. In the Huddleston Case the court required the jury to find certain facts affirmatively before they would be authorized to reduce the offense to manslaughter. In this case the jury is instructed, if they have a doubt as to whether the defendant is guilty of murder in the second degree or manslaughter, to give the defendant the benefit of the doubt, and find the defendant guilty of no higher degree of offense than manslaughter, as shown in the paragraphs of the court’s charge above copied. We have carefully examined the court’s charge, and the special charges given at the request of appellant, and we think they present admirably every issue raised in the case. The court’s charge, exclusive of the special charges requested, presented every issue raised by the testimony, but there can be no doubt that the charge as given, together with the special charges requested by appellant which were given, presented every issue raised by the testimony, and under such circumstances, when there was no error in the charge of the court, there is no such question presented as should require a reversal of the case. The evidence offered in behalf of the state, if believed by the .jury, would authorize a most severe penalty. The evidence offered in behalf of the defendant might authorize the jury to find that he was acting in self-defense, but the jury finds against such contention, and under the circumstances we do not think we are authorized to disturb their finding. Certainly the court fully instructed them as to the facts 'under which they would be authorized to find appellant guilty of murder in the second degree and manslaughter, and they find him guilty of murder in the second degree. Also, the court fully instructed them in regard to justifiable homicide, and this charge, in connection with the special charges given, present that issue. We have carefully reviewed every assignment in the case, and, while not discussing each and every ground assigned in the motion for new trial, we have considered each of them, and we are of the opinion that in none of them is presented any error which should result in a reversal of the case under the evidence adduced.

The judgment is affirmed.  