
    HILL v. STATE.
    (No. 3185.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.)
    1. Homicide (§ 106) — Evidence — Admissibility.
    Antecedent menaces, threats, grudges, and recent difficulties between accused and decedent are admissible on the issue of motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 136; Dec. Dig. § 106.]
    2. CRIMINAL Law (§§ 763, 764) — Instructions — Weight of Evidence.
    A charge that the jury must find enumerated facts beyond a reasonable doubt before they may convict accused is not on the weight of the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768,1770; Dec. Dig. §§ 763, 764.]
    3. Criminal Law (§ 823) — Instructions— Reasonable Doubt.
    Where the court charged on reasonable doubt and the presumption of innocence., a charge submitting an issue was not objectionable for omitting any reference to reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    4. Homicide (§ 42) — Manslaughter—Evidence.
    Where accused and decedent, husband and wife, had a quarrel in the morning and then separated (she going to a sister’s home), and several hours thereafter accused appeared there armed with a gun, and all that the wife did was to decline to go home when he demanded it, there was no adequate cause to reduce the killing by accused of his wife to manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 65, 66; Dec. Dig. § 42.]
    5. Criminal Law (§ 778*) — Instructions— Burden of Proof.
    A charge that, if the jury had any reasonable doubt as to the guilt of accused of murder in the first or second degree or of negligent homicide, they must acquit him, and if the evidence raised a reasonable doubt, accused was entitled to an acquittal, was not objectionable as shifting the burden of proof on accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1854-1857, 1960, 1967; Dec. Dig. § 778.*]
    6. Criminal Law (§ 561) — Reasonable Doubt.
    The jury must find facts constituting an offense beyond a reasonable doubt before they may convict.
    [Ed. Note. — For other cases, see Criminal Law, .Cent. Dig, § 1267; Dee. Dig. § 561.]
    7. Homicide (§ 300) — Self-Defense—Evidence.
    Where neither accused nor any witness testified to any facts which could have led accused to believe that his life was in danger, or that he was in danger of any serious bodily injury, and no blow was passed nor attempted to be struck by any one, and no threatening words uttered or gesture made, the issue of self-defense was not raised.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    8. Criminal Law (§ 829) — Instructions— Refusal of Instructions Covered by the Charge Given.
    It is not error to refuse a special charge covered by a charge given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    9. Homicide (§§ 17, 60) — Murder on Implied Malice.
    Where accused shot and killed his wife while intending to shoot a third person, the killing could not be reduced to manslaughter, but only to murder on implied malice.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 23, 84; Dec. Dig. §§ 17, 60.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Israel Hill was convicted of murder on implied malice, and he appeals.
    Affirmed.
    Jno. W. Scott and Geo. J. Ryan, both of. Marshall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

This is the second appeal in this case, the opinion on the former appeal being reported in 161 S. W. 118. On the second trial of the case appellant was found guilty of murder upon implied malice, and his punishment assessed at 50 years’ confinement in the state penitentiary.

There are two bills of exception in the record relating to a quarrel between appellant and his wife the morning of the homicide. The same question was urged on the former appeal, and the testimony was held properly admitted. Hill v. State, 161 S. W. 118. Under such circumstances, we do not think it necessary to again discuss this question. Antecedent menaces, threats, grudges, and recent difficulties between the parties are admissible on the issue of motive. Neither do we think it necessary to again state the facts, as the former opinion sufficiently states the contention of the state and defendant. In that opinion this court held that negligent homicide of both the first and second degree should have been submitted, and on this trial the court did so instruct the jury.

The complaint that the court erred in submitting murder upon express malice need not be considered, as the jury acquitted of murder in the first degree.

The complaint as to the charge on murder upon implied malice, that “the court did not in this paragraph give the defendant the benefit of reasonable doubt, and is upon the weight to be given the testimony,” is without merit. This paragraph is in language frequently approved by this court. It is not upon the weight of the testimony, but instructs the jury they must so find beyond a reasonable doubt before they would be authorized to convict, and it was not necessary to instruct in this paragraph on reasonable doubt, when the court gave the defendant, in separate paragraphs, the benefit of reasonable doubt as between degrees, and then instructed the jury generally the law as to presumption of innocence and reasonable doubt, and, having so instructed the jury, it was not necessary to give the special charge requested on this issue. Douglass v. State, 8 Tex. App. 520; Neyland v. State, 13 Tex. App. 549; Gonzales v. State, 30 Tex. App. 224, 16 S. W. 978; McGrath v. State, 35 Tex. Cr. R. 423, 34 S. W. 127, 941; Barton v. State, 53 Tex. Cr. R. 445, 111 S. W. 1042; Carson v. State, 57 Tex. Cr. R. 398, 123 S. W. 590, 136 Am. St. Rep. 981.

There is no manslaughter in the case. While it is true the record discloses a quarrel in the morning, when appellant had his gun, and his wife had hold of it, crying, yet after this defendant and his wife separated, he going to the field and she going to a sister’s, several hours thereafter he appeared at this sister’s home armed with a gun, and all his wife is shown to have done was that she declined to go home, when he requested or demanded that she go. Nothing is suggested by the record that would be “adequate cause” to reduce the offense to manslaughter.

The charge on accidental homicide does not shift the burden of proof as contended by appellant. The court instructed the jury that if they should find from the evidence, or “if the evidence raises in your mind a reasonable doubt thereof,” etc., appellant was entitled to be acquitted. In addition thereto the court instructed the jury:

“If you have in your minds a reasonable doubt as to whether the defendant is guilty of murder in the first degree, you will find him not guilty of that offense. Then, if you have in your minds a reasonable doubt as to whether he is guilty of murder in the second degree, you will find him not guilty of that offense. And if you have in your minds a reasonable doubt as to whether or not he is guilty of negligent homicide in the first degree, or negligent homicide in the second degree, then you will acquit him and say by your verdict, ‘Not guilty.’ ”

The paragraphs of the charge presenting negligent homicide of the first and second degrees properly required the jury to find the facts constituting those offenses beyond a reasonable doubt before they would be authorized to convict appellant of either of such offenses. It is the law of this state that the jury must find the facts constituting an offense beyond a reasonable doubt before they are authorized to convict of any offense, and, if the court had not so instructed the jury, it would have been error. Hendricks v. State, 154 S. W. 1005. As shown above, in the charge he did give the defendant the benefit of reasonable doubt as between the different degrees submitted, and the benefit of reasonable doubt as to whether he was guilty of any offense, and then gave the usual and customary instruction of presumption of innocence and reasonable doubt as applicable to the whole case. In no instance was the burden of proof shifted to the defendant.

The evidence does not raise the issue of self-defense. The defendant and no other witness testifies to any state of facts which could or would lead defendant to believe that his life was in danger or he was in danger of suffering any serious bodily injury. Not a blow was passed, nor attempted to be struck by any one, and no threatening words uttered or gesture made. Therefore the court did not err in refusing the special charge presenting the issue of self-defense.

The charge as given on accidental homicide was a full and fair presentation of that issue, and it was not therefore necessary to give the special charge requested. Neither was there any testimony raising the issue that when defendant shot his wife he intended to shoot Becky Brown; but, if there was any such testimony, this would not reduce the offense to manslaughter, but only to murder upon implied malice, and this is the offense of which he was found guilty.

There is no evidence in the case suggesting the issue that Becky Brown assaulted defendant. He in his testimony does not so contend; but if she had attacked him without any weapon of any character, and with her naked hands, it would not be such an assault as would justify him in slaying with a deadly weapon. If there had been the suggestion of assault causing either pain or bloodshed, the issue of manslaughter would have been raised, but not justifiable homicide. But, as hereinbefore stated, there is no evidence that any one on this occasion assaulted defendant, or that any pain was in-dieted on him, or bloodshed produced, other than that caused by the firing of the fatal shot which killed his wife.

Appellant’s counsel filed a motion requesting the postponement of the submission of this case. As it was tried on the 19th day of last February, the motion for new trial being overruled on the 28th of that month, we think ample time elapsed in which to properly brief the case, and we therefore declined to further postpone the submission, inasmuch as our court must adjourn under the law the last Saturday in this month.

No error appearing in the record, the judgment is affirmed.  