
    SIMMS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 12, 1912.
    On Motion for Rehearing, June 28, 1912.)
    1.Criminal Law (§ 398) — Evidence—Best and Secondary Evidence.
    Where, in a prosecution for assault to murder, the shooting was claimed to have taken place in October, 1910, while the trial did not occur until March, 1912, evidence that the clothing worn by prosecutor, when shot, was not powder-burned, was admissible on an issue as to how close he was to defendant when shot; it not being necessary to produce the clothes as the best evidence.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. § 398.]
    2. Criminal Law (§ 1169) — Appeal—Prejudice — Admission of Evidence.
    Where prosecutor’s attending physician testified to the nature and character of the wound inflicted when defendant shot him, evidence that after he was shot prosecutor turned his horse loose, believing the horse would go home and his people would come and find him, was not prejudicial to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2691-2699; Dec. Dig. § 1169.]
    3. Criminal Law (§ 1043) — Trial — Evidence — Objections.
    Where no grounds of objection to evidence were stated, defendant’s counsel merely stating in some instances, “Objected to,” and in others that the testimony “was irrelevant and immaterial,” the admission thereof could not be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.]
    4. Homicide (§ 257) — Assault to Murder-Evidence.
    Evidence held to sustain a conviction of assault to murder.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 543-552; Dee. Dig. § 257.]
    5. Homicide (§ 332) — Appeal—Sufficiency of Evidence — Review.
    Where there was evidence, which, if believed, was sufficient to support a conviction of assault to murder, and the court submitted the defense of absolute justification, a conviction would not be reversed as against the evidence, though it appeared to the appellate court that the evidence predominated in favor of the defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 699-704; Dec. Dig. § 332.]
    On Motion for Rehearing.
    6. Criminal Law (§ 770) — Trial—Charge.
    It is the mandatory duty of the court to charge on every theory of defense brought out by testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dee. Dig. § 770.]
    7. Homicide (§ 297) — Assault to Murder-Justification — Instructions.
    In a prosecution for assault to murder, an instruction that if the jury believed from the evidence that prosecutor was advancing towards defendant or was reaching for defendant’s horse, and demanding defendant to give up his money, or words to that effect, and under those circumstances defendant shot prosecutor, then he was justified and should be acquitted, as he should also be if they had reasonable doubt on that point, sufficiently and properly charged defendant’s claim of justification.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 611; Dec. Dig. § 297.]
    8. Homicide (§ 86) — Assault to Murder-Intent.
    Under Pen. Code 1911, art. 51, providing that the intention to commit an offense is presumed whenever the means used are such as would ordinarily result in the commission of the forbidden act, the fact that defendant testified that he shot to scare prosecutor, and not to kill him, did not require an instruction that, if the jury believed such statement to be true, they should acquit, since, unless accused was justified in shooting, he would be responsible for the consequences of his act, whether he shot to kill prosecutor or only to scare him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 112; Dec. Dig. § 86.]
    
      Appeal from District Court, Chambers County; L. B. Hightower, Judge.
    Milburn Simms was convicted of assault to murder, and he appeals.
    Affirmed, and rehearing overruled.
    Heidingsfelders, of Houston, 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.

Appellant was indicted, charged with assault to murder, convicted, and his punishment assessed to two years in the penitentiary.

A state of facts out of the ordinary is presented by this record from the state’s standpoint. No motive or suggestion of a reason for the shooting is shown, unless it can be attributed to just a wanton act. Ray Wallace says he was crossing a bridge on his way home, when he saw appellant and another negro approaching the bridge horseback ; that when they saw him they turned back, and he holloed to them to come on, that he was not going to bother them; that they did come on, and when they got about even with him, appellant shot at him twice, one ball entering his shoulder and ranging downward, and after doing so the negro rode on. He testifies no ill will or animosity existed between them. The negroes, in substance, testify the same thing, as the prosecuting witness until they start across the bridge. They say when they got even with the prosecuting witness that Wallace said, “Halt!” reaching for the bridle of his horse, “Give me your money!” when appellant fired twice and rode on. The jury did not believe the statements of the negroes, and found appellant guilty, and this leaves the record with an unexplained assault. On this issue the court charged the jury: “You are further charged in this connection that if you believe from the evidence that Ray Wallace was advancing toward the defendant or was reaching for defendant’s horse and demanding defendant to give up his money, or words to that effect, and under such circumstances the defendant shot the said Ray Wallace, then he was justifiable, and if you so find you will acquit the defendant, or if upon this point you have a reasonable doubt you will acquit defendant.” Thus the defense presented by the evidence offered in behalf of defendant was put fairly before the jury. In addition to this, the court charged on self-defense from the appearance of danger, as it appeared to defendant at the time, and the charge in every sense of the word was as favorable to defendant as the evidence would justify.

In one bill of exceptions it is shown that the court permitted witnesses to testify that the clothing worn by the prosecuting witness on the night he was shot was not powder-burned. In this there was no error. It was an issue in the case as to how close prosecuting witness was to appellant when the shots were fired, and this testimony was admissible as bearing on that issue. The shooting is alleged to have taken place in October, 1910, while this trial did not take place until March, 1912, and it was not necessary to produce the clothing worn on that occasion.

The prosecuting witness was permitted to testify that, after he was shot, he turned his horse loose, believing the horse would go home and his people would come and get him. This evidence could not have been detrimental to defendant, as the attending physician had testified to the nature and character of the wound inflicted.

These are the bills in the transcript, and while in the statement of facts it is shown other exceptions were reserved to the introduction of testimony, and the court, in approving same, approves the exceptions therein reserved, yet in the statement of facts it is shown that defendant was granted the privilege, when preparing the bills, to state the grounds of the objections. As no bills were prepared, and no grounds of objection stated at the time the testimony was objected to, but it only being stated that defendant “objected” in some instances, and at other times it is stated that such testimony was irrelevant and immaterial, the matter is not presented in a way we can review the question of admissibility of such testimony.

The question of the sufficiency of the testimony, to us, presents a serious question, and one whether the testimony of the state’s witness would support the verdict of the jury. It has been the uniform holding of this court that in the absence of motive being shown, and the killing or shooting is without excuse or justification and is unexplained, the law implies malice. The state’s testimony shows no motive or explanation other than a wanton and willful act without excuse or justification; the defendant’s testimony shows a perfect defense —nothing to mitigate, but absolute justification. Yet the judge submitted this defense, fairly and fully, and the jury by their verdict found it untrue and there is nothing in the record to suggest that the verdict is due to passion or prejudice, and, under such circumstances, we have been frequently called on to pass on how far we are permitted to invade the province of the jury and substitute our judgment as to the weight of the evidence, and it seems to be the rule that if there is evidence to support the finding of the jury, and there is nothing in the record to cast a doubt on that evidence, other than that the evidence offered in behalf of defendant appeals strongly to our judgment, we are not permitted to disturb the verdict.

To us the evidence offered in behalf of defendant seems to predominate in favor of the theory advanced as a justification; but the law was clearly stated to the jury, and they viewed the matter differently.

Under such circumstances, our province being merely to see that the case is tried fairly in .accordance with the rules of law, and to only disturb the verdict on account of evidence only when there is no testimony to support it, or the testimony is insufficient to overcome the presumption of innocence, or is so vague or contradictory that no reasonable mind would be justified in reaching such conclusion, the judgment is affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant criticises that part of the original opinion wherein we held: “It has been the uniform holding of this court that in the absence of motive being shown, and the killing or shooting is shown to be without excuse or justification and is unexplained, the law implies malice.” He says this is abstractly correct, but that, where the defendant’s testimony offers an explanation of the shooting, this principle of law does not apply. If the jury had believed defendant’s explanation, this case would not have been before us on appeal; but he would have been acquitted. We thoroughly agree with defendant that it is the law of this state, and mandatory on the court, to charge on every theory of defense brought out by the testimony, so it is useless to discuss the authorities cited by appellant. The sole question is.: Did the court charge on every theory of defense brought out by the testimony? The defendant testified to seeing a man on the bridge, and that he turned back, when the man told him to come on. To quote his exact language, he says: “So we turned and went on back, and just as we got opposite to him he reached one hand for my horse and says, ‘Halt!’ 1-Ie was reaching for my horse, and said, ‘Give me your money.’ That was on the bridge, and I think it was about the middle of the bridge. He was on foot. When he reached and says, ‘Give me your money,’ he had his other hand in a position like he had some, thing in it, gun or something. I could not see whether it was a gun or what it was. I had this gun in my wallet on the pommel of my saddle. I reáched in my wallet and drew it and went to shooting. As to how close this man was to me when I shot him, well, I could have almost put my hand on him. He was about two feet from me, I guess. I did not shoot straight down. When I snatched it out of my wallet hanging on the pommel of the saddle, I shot in a kind of slanting way. I could not tell whether it was a white man or a negro, and I did not know who it was. I shot at him, but I did not know whether I hit him. I shot to get away from him. I thought he was about to rob us.” This is the way he testified on direct examination, putting the matter in the strongest light for himself.

The court submitted this defense to the jury in the following language, after charging on self-defense in an approved form: “You are further charged in this connection that if you believe from the evidence that Ray Wallace was advancing toward the defendant or was reaching for defendant’s horse and demanding defendant to give up his money, or words to that effect, and under such circumstances the defendant shot the said Ray Wallace, then he was justifiable, and if you so find you will acquit the defendant, or if upon this point you have a reasonable doubt you will acquit the defendant.”

Thus it is seen the court aptly and tersely presented the defense made by defendant. However, appellant insists that as appellant testified on cross-examination that he did not shoot to kill deceased, but shot to scare him, the court ought to have instructed the jury that if they believed this to be true they should acquit him. This is not the law. If appellant, by some act or conduct of deceased, was not justified in shooting, if he shot at him to scare him it would be a willful and wanton act, and no one is justified in committing such an act, but it would be an offense under our law, and appellant would be held responsible for the consequences of such an act. Article 51 of the Penal Code provides that the intention to commit an offense is presumed whenever the means used are such as would ordinarily result in the commission of the forbidden act. If appellant shot at deceased to scare him, without being justified in so doing, it is an offense. If he shot under the circumstances he stated, the court fully instructed the jury as to the law under those conditions. The contention that the law never presumes anything is not correct, and is not supported by any of our decisions. If an illegal act is shown beyond question, and no excuse or justification shown, the law presumes that such person intended the necessary and p’robable consequence of such an act. Shaw v. State, 34 Tex. Cr. R. 435, 31 S. W. 361; Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679; Wood v. State, 27 Tex. App. 393, 11 S. W. 449; High v. State, 26 Tex. Cr. App. 546, 10 S. W. 238, 8 Am. St. Rep. 488; Lane v. State, 16 Tex. App. 172; Aiken v. State, 10 Tex. App. 610; McCoy v. State, 25 Tex. 42, 78 Am. Dec. 520. In the case of Hill v. State, 5 Tex. App. 7, this court held: “We have carefully examined the entire charge, and, take it as a whole, we do not believe it is liable to the first objection made to it by defendant. The doctrine of intent, as it prevails in the criminal law, says Mr. Bishop, an eminent philosophical writer on the criminal law, is necessarily one of the foundation principles of public justice. When one person kills another, the killing must be done with malice aforethought to make the crime of murder. It is a principle of the common law, as old as the law itself, that all homicides are presumed to be malicious until the contrary ap-peareth from the evidence. This is the law in Texas. In the case of Farrer v. State, 42 Tex. 265, the Supreme Court say: ‘It is a familiar axiom of the law that every person is presumed to understand the probable result of his acts. And when an unlawful act is clearly shown to have been done, it is for the defendant to show facts which mitigate, excuse, or justify it,, so that a reasonable doubt, at least, may arise on the entire evidence in the case as to his guilt. Hence, when the killing is proved, and it is not shown to have been done under sudden passion, induced by an adequate cause, or under circumstances which excuse or justify it, such killing must be regarded as voluntary and designed, and therefore with the' malice which the law imputes to such homicide.’ ”

The motion for rehearing is overruled.  