
    LOPEZ v. STATE.
    (No. 12479.)
    Court of Criminal Appeals of Texas.
    April 24, 1929.
    Rehearing Denied June 5, 1929.
    Weaver & Terry, of Corpus Christi, and Lloyd & Lloyd, of Alice, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMOBE, J.

Conviction for murder; punishment, 25 years in the penitentiary.

For the first time in his motion for new trial appellant complains of certain matters in the charge of the court which are not deemed fundamentally erroneous, if at all.. Where it appears from the record that no exceptions were taken to the charge of the' court, we uniformly hold an attempt to raise irregularities therein for the first time in the motion for new trial to oome too late. Wilson v. State, 83 Tex. Cr. R. 593, 204 S. W. 321; Alsup v. State, 85 Tex. Cr. R. 36, 210 S. W. 195; Flores v. State, 86 Tex. Cr. R. 235, 216 5. W. 170; Brown v. State, 88 Tex. Cr. R. 55, 224 S. W. 1105; Hill v. State, 89 Tex. Cr. R. 450, 230 S. W. 1005; Roberts v. State, 99 Tex. Cr. R. 492, 269 S. W. 103.

Wis have carefully examined the evidence, and are of opinion same is sufficient to afford justification for the verdict. Appellant, with a shotgun, shot deceased at close range as the latter approached the place where his wife and children and appellant were located. There had been some estrangement between deceased and bis wife, wbo was a sister of appellant, and sbe bad caused tbe arrest of deceased for wife desertion. On tbe nigbt in question, deceased asked some parties to go witb bim to where bis wife was staying witb ber children and he'r brother, this appellant; tbe avowed purpose of deceased being to talk matters over witb bis wife. A young man wbo went witb deceased on said occasion testified that be called out, when they approached tbe bouse, to tbe wife of deceased, that ber husband was there and wanted to speak to ber. She testified that, when this occurred, sbe waked appellant, wbo thereupon put a shell in bis shotgun and shot deceased, who was on tbe outside of tbe bouse. When tbe body of deceased was found tbe next morning, be had in one hand a partially smoked cigarette, and in tbe other an unligbted match. Appellant claimed self-defense, and testified to some threats made by deceased, and that, when be saw deceased coming toward bim, be fired in self-defense. These conflicts in the testimony have been settled by tbe jury adversely to appellant.

Finding no error in tbe record, tbe judgment will be affirmed.

HAWKINS, J., absent.

On Motion for Rehearing.

MORROW, P. J.

Tbe wife of Pedro Uopez, the deceased, was the sister of tbe appellant, Justo Lopez. Appellant came to Texas a short time before the homicide. He and his sister caused tbe arrest of tbe deceased upon tbe claim that be bad deserted bis family and taken with bim some $300 or $400. He was arrested, and $63 were found in bis possession, a part of which was used in payment of bis fine. While under arrest, tbe deceased threatened to kill the appellant. A settlement of their differences was afterwards made, by which tbe deceased agreed to return to Mexico, and that bis wife would follow bim later. They were in accord, however, upon a separation. Tbe deceased and bis family, together witb tbe appellant, bad been living in a small shed on tbe farm of Mr. Foley. At tbe time of the homicide, tbe appellant and tbe family of tbe deceased were in tbe shed mentioned. Late in tbe nigbt tbe deceased came to tbe farm on which be lived, and requested tbe party in charge to go witb bim to the shed in order that be might talk to the parties. Tbe son of tbe keeper accompanied tbe deceased. Upon reaching there, tbe wife of tbe deceased was told that her -husband desired to speak to them. Sbe woke tbe appellant, wbo, using a shotgun, fired and killed tbe deceased. He fell a few feet from tbe door of tbe bouse where bis body was found on tbe following morning. Upon bis falling, Garcia, wbo was witb bim, left. On tbe body of tbe deceased was found a large butcher knife in bis belt, an unlit match in one band, and a cigarette in tbe other. Tbe wife of tbe deceased testified that he lived for about half an hour after be was shot; that neither sbe nor tbe appellant went to bis body. Tbe testimony of tbe appellant touching tbe incidents of tbe homicide was not materially different from that of tbe state’s witnesses. The appellant testified that, when be was awakened by tbe wife of tbe deceased, be loaded bis gun and fired, whereupon the deceased fell; that be shot because tbe deceased bad threatened to kill bim.

In a very forceful motion, it is insisted that there is not evidence of malice, and that the case was not properly submitted in tbe charge of tbe court. Tbe court instructed tbe jury on tbe law of murder, and defined malice, and gave quite a comprehensive charge on tbe law of self-defense embracing tbe subject of both real and apparent danger.

In bis motion for new trial, tbe appellant set up newly discovered evidence, which was tbe affidavit of tbe county attorney to tbe effect that tbe deceased bad entered a plea of guilty of wife desertion after tbe filing of the complaint against bim, and that it was understood by tbe witness that be paid a fine and left about $27 witb tbe sheriff, which was given to tbe wife of tbe deceased. This seems to be entirely cumulative to tbe testimony upon tbe trial. Moreover, there is a lack of tbe diligence essential to a reversal upon tbe ground of newly discovered evidence.

Tbe sufficiency of tbe evidence to show malice is not deemed open to serious question. It is a question of fact, inferable from the circumstances attending tbe homicide. • It has long been tbe rule that, “where it is shown that a homicide was intentionally' committed, and tbe facts show that it was done neither witb express malice nor under circumstances excusing, justifying or mitigating tbe act, tbe law in that event implies malice.” Branch’s -Crim. Law, p. 255, § 426. Under a favorable charge on self-defense, tbe jury rejected that defensive theory. Tbe state of tbe appellant’s mind at tbe time be fired tbe fatal shot is not a question of law, but one of fact. See Claxton v. State, 105 Tex. Cr. R. 309, 288 S. W. 444 (opinion on motion for rehearing, p. 311).

Tbe court’s charge is criticized. In tbe case of Miller v. State (Tex. Cr. App.) 13 S.W. (2d) 865, tbe appellant claims that tbe charge was defective in failing to instruct tbe jury that an essential ingredient of tbe offense of murder was the intent to kill. We find that such an instruction was embraced in tbe court’s charge in the present instance, wherein it is said:

“ * * * 'with intent to kill, did unlawfully and witb malice aforethought shoot Redro Lopez with a gun and thereby kill said Pedro Lopez as charged in tbe indictment,” etc.

Tbe criticism of the instruction in tbe charge that the defendant, “with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use,” etc., is not deemed tenable. In fact, no substantial fault in the instruction given the jury has been perceived. Under article 666, Code Or. Proc. 1925, a reversal for any fault in the charge in the present case would not be within the scope of the authority of this court. What has been said touching the charge deals with it on its supposed merits. All the criticisms, however, relate to matters which were waived by the failure to direct the trial court’s attention to them at the time of the trial; and, to complain of its ruling by appropriate exception, the subject is covered by statute, articles 658, 659, and 660, Code Cr. Proc. 1925. The authorities cited in the original opinion have but application to the law contained in the provisions of the statutes mentioned.

The motion for rehearing is overruled.  