
    POSOS v. STATE.
    (No. 8857.)
    
      (Court of Criminal Appeals of Texas.
    March 4, 1925.
    On Motion for Rehearing, April 22, 1925,)
    
      1. Criminal law <&wkey;829(4) — Refusal of charge fairly and adequately embraced in court’s charge not error.
    Refusal of special charge on accidental homicide, fairly and adequately embraced in court’s charge, is not error.
    2. Criminal law <&wkey;829( 18) — Refusal of charge on reasonable doubt as to accused’s state of mind held not error, in view of charge given.
    In view of charge given on accused’s request that any reasonable doubt as between murder and manslaughter should be resolved in accused’s favor, court did not err in refusing charge to resolve any reasonable doubt as to accused’s state of mind in his favor.
    3. Criminal law &wkey;>I09'l(ll) — Bills of exception in question and answer form not considered.
    Bills of exception in question and answer form, instead of narrative form required by Vernon's Ann. Code Cr. Proc. 1916, art. 846,. cannot be considered, where no permission of trial court nor any reason to depart from statutory rule appear in record.
    4. Criminal law <&wkey;>l 120(2, 4) — Bill of exceptions to sufficiency of predicate for introduction of dying declaration, introduction in evidence and contents of which are not shown, not considered.
    Bill of exceptions embracing objection to sufficiency of predicate for introduction of dying declaration cannot be considered, where neither bill nor statement of facts shows that declaration was introduced in evidence or reveals its contents.
    <£^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      5. Criminal law <&wkey;>t 119(2) — Bill of exceptions held too meager to show error in questions to defendant as to testimony on former trial and matter not in evidence. -
    Bill of exceptions, containing mere objections, not verified as facts nor otherwise explained, to questions asked defendant as to testimony, which he denied having given on former trial, and matter not in evidence on .present trial, held too meager to show error.
    6. Witnesses <&wkey;277(2) — Cross-examination of defendant, as to why he attacked state’s witness after homicide, held proper.
    Defendant having testified in detail on direct examination as to inciáents of homicide and"- that he became unconscious from use of drink thereafter, state was properly permitted to ask him on cross-examination to explain his attack on state’s witness with knife after homicide.
    7. Homicide <&wkey;250 — Conviction of murder held supported by evidence. ,
    Evidence held sufficient to support conviction of murder.
    8. Homicide &wkey;»!46 — Malice aforethought implied from intentional killing, in absence of. explanation.
    Law implies malice from intentional killing, in absence of such explanation sanctioned by jury, as would excuse homicide or mitigate offense.
    On Motion for Rehearing.
    9. Homicide &wkey;>348 — -Instruction on presumption arising from use of deadly weapon held prejudicial error.
    Instruction embracing substance of Pen. Code 1911, art. 1147, as to presumption' arising from use of deadly weapon, held prejudicial error, within Yernon’s Ann. Code Or. Proe.' 1916, art. 743, in prosecution for murder with pistol used as firearm at close range, where sole issue was whether it was fired by accident or design.
    ©ssPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Cameron .County; A. W. Cunningham, Judge.
    Emilio Posos was convicted of murder, and he appeals.
    Reversed and remanded on rehearing.
    H. L. Yates and Graham, Jones, Williams & Ransome, all of Brownsville, for appellant.
    ■Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State. ,
   MORROW, P J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of five years.

The state’s theory, as developed from the evidence, is this: Benigno Munoz entered the store of Julian Solis. Gregorio Reyes was present on the outside of the store. Appellant entered, and after making a small purchase, said to Munoz: “Excuse me, I want to talk to you.” The two left the store together. A few minutes later, 'Solis heard a pistol fire. Upon running to the door, he saw Munoz and the appellant scuffling. The witness spoke to them and they separated, going in different, directions. It was dark and the exact position of the parties was not discernible by the witness, though he saw their hands above their heads and heard one of them say: “Turn loose, give me the. pistol.” With these words one wrenched the pistol from the order and they separated. As Munoz was leaving, he said: “Now you will see, I am going to take this pistol and-deliver.it to the-offieers.” Shortly thereafter appellant came to the witness and asked the whereabouts of Munoz. When he returned, the appellant was drunk and appeared to be angry. Munoz had re-, ceived a gunshot wound and died on the following day. He weighed about 185 pounds while the weight of the appellant was 140 pounds.

Rayes testified but threw no light on the transaction.

According-to the witness Galvan, he passed the parties about 25 steps and heard Munoz say, “Turn loose the pistol, you. s — n of a b-h.” Appellant , turned loose, and Munoz said, “I am going to deliver this to the authorities, you s — n of a b-h.” He. met Julian Solis and Gregorio Reyes, who. said, “There goes Benigno Munoz; Einiliq Rosos shot him.” About a, block distant, -the witness saw the-appellant and-saw him jump over the fence of the cemetery and came towards the witness and demanded that he deliver the pistol. From the-, testimony of the witness, it seems that the appellant had a knife in his hand. He had been drinking but was “well on his feet.”

The witness Lopez saw; Munoz about 8 o’clock at night and was told by him that he had been shot by Posos. Lopez was a constable and Munoz gave him -a pistol. Some of the ehaníbers of the pistol were loa.ded.

Appellant testified that there had been no previous difficulty between him and the deceased ; that upon entering the store of Solis-he bought a package of tobacco and a bottle of mescal. He and Munoz went out together and drank of the mescal. Appellant offered to sell Munoz the pistol. Munoz grabbed it and said he had no money. Appellant demanded it and á scuffle ensued in which Munoz got possession of the pistol, and in the scuffle the pistol fired without any intent of the appellant that it should do so. He was not aware that Munoz was shot until the following day. Appellant said he had no intention to shoot Munoz; that they were good friends. After the departure of Munoz, appellant drank the remainder of the mescal and became unconscious from its effect.

The court instructed the jury upon the .various issues of the case save that of manslaughter, which he gave in a special charge prepared by tbe appellant’s counsel. The defense of accidental homicide was, we think, fairly and adequately embraced in the court’s charge. There was no error in refusing to repeat it in the special charge.

In the special charge upon the law of manslaughter, which was prepared by appellant’s counsel and given to the jury, the opening sentence was to the effect that if between murder and manslaughter any reasonable doubt existed in the minds of the jury, it should be resolved in favor of the accused. In view of this charge, we think the court committed no error in refusing to single out the question of the appellant’s state of mind and tell the jury to resolve any reasonable doubt that might be entertained upon that subject in favor of the accused. This apparently would have been but a repetition.

Several of the bills of exception found in the transcript are but a transcription of the stenographer’s notes in question and answer form. Among these are bills Nos. 6, 9, 12, and 13. No permission of the trial court -to ,so frame the bills is found in the record, and so far as we are able to discern, no reason existed for the departure from the statutory rule which requires the bills of exception to be in narrative form. These bills therefore cannot be considered. Article 846, Vernon's Ann. Code Cr. Proc. 1916; Jetty v. State, 90 Tex. Cr. R. 346, 235 S. W. 589; Reese v. State, 94 Tex. Cr. R. 220, 249 S. W. 857; Soderman v. State, 97 Tex. Cr. R. 23, 260 S. W. 607.

In bill No. 8 is embraced an objection to the sufficiency of the predicate for the introduction of a dying declaration which seems to have been attempted by the reproduction of the testimony of Miller, who died since giving his testimony on the former hearing. It does not appear from the bill of exceptions that the dying declaration to which the predicate related was” introduced in evidence, nor is its contents revealed by the bill. Neither is such information given by the statement of facts. The inability of this court to determine whether there was material error committed in laying the predicate is manifest. To appraise the effect of the ruling, it would be necessary that this court be informed of the nature and substance of the alleged dying declara tion and to know that it was received in evidence.

Prom bill No. 11 it appears that, while the appellant was testifying in his own behalf, two questions were asked, the first being:

“The last time you testified in this cause, you testified that you had shot Munoz because you were defending your property, did you not?”

The other was:

“How do you explain the attack you made on Julian Solis with a knife?”

The objection made was that the questions were unfair in that the appellant, on the former trial, had not testified that he shot Munoz in defense of his property, and no testimony had been given to the effect that the appellant had attacked Solis with a knife. There are but objections, not verified as facts, nor is the bill otherwise self-explanatory. It appears from the statement of facts that the case had been tried several times. Solis, an eyewitness, testified that on the night of the homicide and subsequent thereto, appellant came to him and said. “Hello, s — n of a b — h; where is Benigno Munoz?” He further said: “I want to talk to you; come oyer here.” They were separated by a distance of three or four feet. The witness saw in the hand of the appellant what looked like a big knife. Appellant appeared to- be angry.

Appellant testified upon the stand, detailing the circumstances of the encounter in which the deceased lost his life, affirming that the discharge of the pistol was accidental. Responding to the first question propounded, appellant denied that he had ever testified that he shot Munoz in order to protect his property. The state did not impeach him upon that subject. Whether the record upon the former trial was in a condition to contradict him is not disclosed, but this record contains the appellant’s unchallenged denial that he gave the testimony implied in the question to which the objection was addressed.

Appellant testified on direct examination that, after the homicide, he became so- intoxicated that he lost his mind. Having thus testified in detail as to the incidents of the homicide and claiming that after the homicide he became unconscious from the use of drink, we think it was not out of place that he was asked to explain his conduct towards the witness Solis. As stated above, in its recital of the surrounding facts, the bill is too meager to enable us to value it, and for that reáson it fails to show error. However, in looking at the facts, we are of the opinion that if the bill were complete, the result would be the same.

After giving the necessary definitions pertaining to the offense of murder in the first paragraph of the charge, the court, in the second paragraph, expressed himself thus:

“The instrument or means by which a homicide is committed are to' be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used, such intention evidently appears.”

Exception was reserved to this paragraph and the appellant contends that it was prejudicial to his case. In the third paragraph the jury was instructed,- in substance, that if they believed beyond a reasonable doubt that the appellant, with a pistol and with the intent to hill, did unlawfully and with malice aforethought, shoot and kill the deceased, he would be guilty of murder. In the same paragraph is the following charge:

“Amongst other defenses set up in this case by the defendant is what is known as ‘accidental homicide.’ That is, that if the deceased was killed by a gunshot wound at the time and place alleged in the indictment, the shot which produced his death was discharged by accident and without any intention on the part of the defendant to inflict death upon the deceased, and that such shot was discharged while the defendant and the deceased were engaged in a scuffle or struggle over the possession of the pistol from which the shot was fired, you are instructed that a homicide, occurring under such circumstances, is accidental, and such a homicide is not in violation of law, and is entirely excusable and unintentional. Applying the foregoing principle and proposition of law to the facts in this case, you are instructed that, if the evidence raises in your mind a reasonable doubt as to whether the shot which killed the deceased (if he was killed by such shot) was accidentally discharged in the struggle over the pistol, or unintentionally fired by the defendant, then you will find the defendant ‘not guilty’ and so say by your verdict.”

Under the terms of article 743, Vernon’s Ann. Code Cr. Proc. 1916, an error in the charge not calculated to injure the rights of the accused, who has otherwise had a fair trial, is not ground for reversal. See Vernon’s Tex. Crim. Stat., vol. 2, p. 501, also page 507. The charge given was in substance article 1147, Penn. Code, the design of which is to protect the accused. See Burnett v. State, 46 Tex. Cr. R. 116, 79 S. W. 550; Gallagher v. State, 55 Tex. Cr. R. 50, 115 S. W. 46; Andrus v. State, 73 Tex. Cr. R. 329, 165 S. W. 189. Even in a case where the evidence does not demand such a charge, the use of it is not necessarily harmful. See Campos v. State, 50 Tex. Cr. R. 104, 95 S. W. 1042, and other cases to which reference is made in Dugan v. State, 86 Tex. Cr. R. 130, 216 S. W. 161. Much in point against the complaint of the charge is the opinion of this court, written by Presiding Judge Davidson, in McKenzie’s Case, 96 S. W. 932, in which the issues were not dissimilar from those in the present instance, and the writer of the opinion said :

“Viewed from the standpoint of appellant’s testimony, that the killing was accidental, it occurs to us this charge was favorable, because the jury were instructed there could be no presumption against him arising from the use of the weapon’ in regard to the death of the party, unless from the manner in which it was used such intention evidently appears. This it occurs to us would throw the burden of proof upon the state to show the facts which made his intention evident from the facts introduced and protect him in regard to his accidental theory.”

In the opinion of'this court, taking into account the evidence in the present caso, the paragraph of the charge under discussion might well have been omitted, but tested by the same rule, especially in the light of the áuthorities mentioned, we do not regard the charge as harmful.

The state’s evidence, if believed, is deemed sufficient to support the verdict. If the appellant intentionally killed the deceased, the law would imply malice aforethought in the absence of an explanation sanctioned by the jury such as would excuse the homicide or mitigate the offense. The only defense was that of accidental or unintentional shooting. This the jury rejected and accepted the conflicting theory of intentional killing.

The evidence is regarded sufficient to support the verdict, and in the procedure we have found no such .fault as would authorize a reversal of the judgment. It is therefore affirmed.

On Motion for Rehearing.

Upon a reconsideration of the record in the light of the able motion for rehearing and oral argument thereon, ’we think we were wrong in holding that the paragraph of the charge quoted in the original opinion em-bracing the substance of article 1147 of the Penal Code, was not prejudicial to the appellant. Article 1147, supra, reads thus:

“The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not. likely to produce death, it is'not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears.”

On the original hearing we were influenced by the quotation from the opinion in McKenzie’s Case (Tex. Cr. App.) 96 S. W. 932. We believe that opinion is in conflict with others subsequently written by the same distinguished judge as well as by other members of this court in former times. See Burnett v. State, 46 Tex. Cr. R. 116, 79 S. W. 550; Gallagher v. State, 55 Tex. Cr. R. 50, 115 S. W. 46; Andrus v. State, 73 Tex. Cr. R. 329, 165 S. W. 189; Campos v. State, 50 Tex. Cr. R. 102, 95 So. 1042. Shorn the cases last above mentioned, as well as from Dugan v. State, 86 Tex. Cr. R. 130, 216 S. W. 161, it is apparent that the design of article 1147 is to protect the accused in a homicide case against the presumption that the jury might indulge in conflict with the presumption of innocence. We are inclined to the view that it has no application in a case in which the homicide was committed with a pistol used as a firearm at close- range. Under some circumstances, such a charge, though not' applicable, might not be harmful. The statutes seem to be designed for use in. favor of the accused in those cases of homicide in which death results from the use of a weapon which ordinarily would not be a deadly weapon. See Twyman v. State, 96 Tex. Cr. R. 439, 258 S. W. 480, and authorities there cited.

In'the present case, the deceased met his death from a pistol shot fired while he and the appellant were engaged in a struggle. There is no question that if the pistol was used as a firearm it was a deadly weapon, but there is no presumption that appellant fired the pistol. The sole issue was whether the pistol was fired by accident or design. If by design, the homicide was culpable; if by accident, it was excusable. Under the facts, it occurs to us that only the statutory presumption operating ■ was the presumption of innocence. The appellant claims in his testimony that the discharge of the pistol was accidental.' This issue we believe should have gone to the jury unburdened with an instruction 'touching the presumption arising from the use of a deadly weapon.

Erom what has been said it follows that, in our opinion, the appellant’s motion should be granted, the affirmance set aside, the judgment of conviction reversed, and the cause remanded, and such is the order.  