
    McKINNEY v. STATE.
    (No. 7539.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1923.
    Rehearing Denied Jan. 16, 1924.)
    1. Criminal law <&wkey;147 — Prosecutions for murder alone survive beyond three years.-
    While indictment for murder embracing lower grades of homicide may be prosecuted at any time, the right to prosecute for murder alone survives beyond the three-year period of Vernon’s Ann. Code Cr. Proc. 1916, art. 228.,
    2. Homicide <&wkey;307(I) — Instruction on included offenses barred by limitation.
    Where killing occurred in 1916, in prosecution under indictment found in April, 1922, in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 228, murder being the only offense embraced therein of which there could be conviction, it was proper to instruct, in defendant’s interest, as to the nature of other offenses embraced in murder indictments, but barred by limitation.
    3. Criminal law <&wkey;-982— Instruction on suspended sentence properly refused.
    Vernon’s Ann. Code Cr. Proc. 1916, art. 865b, permitting jury to.suspend sentence, not being applicable to murder, in prosecution therefor, there was no error in refusing instruction on suspended sentence.
    4. Homicide (&wkey;!24 — Killing boy in melon patch not justifiable.
    Killing a boy in defendant’s melon patch at night, in view of Pen. Code 1911, art. 1234, making act of taking melons from a farm a misdemeanor only, is not within article 1105, making killing justifiable if committed to prevent theft.
    On Motion for Rehearing.
    5. Homicide (&wkey;>230 — Evidence held to warrant verdict of murder.
    In prosecution for killing a boy in defendant’s melon patch, evidence of defendant’s contemplation of setting a trap gun, threats, and admissions held to warrant conviction of murder.
    6. Criminal law <&wkey;829(4) — Charge covered by charges given properly refused.
    In murder prosecution, where charge as to firing without intent to shoot deceased, but to frighten him, fully covered defendant’s requested charge thereon, the refusal of the requested charge was not error.
    7. Homicide <&wkey;307(l) — Instruction to acquit of lesser offenses barred by limitation without error.
    In murder prosecution under indictment found in 1922, for killing in 1916, it was not error to give instruction that, if jury believed defendant guilty of manslaughter or lesser crime, they should acquit him, as such crimes were barred by limitation.
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Earl McKinney was convicted of murder, and he appeals.
    Affirmed.
    Preston Martin, of Weatherford, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The appeal is from a judgment condemning the appellant to confinement in the penitentiary for a period of five years for the offense of murder.

Using a shotgun loaded with small shot, the appellant shot and killed Hobson Sullivan, a youth 15 years of age. -The shot was fired at nighttime when the deceased and his companion, a boy 13 years of age, were in a watermelon patch belonging to the appellant.

According to the state’s evidence, the deceased and his companion went to a church where religious services were about to begin and agreed to go together to the appellant’s watermelon patch and get some watermelons. They entered the inclosure at a point about 400 yards from the appellant’s dwelling house. When Sullivan stooped down to thump a watermelon, the appellant arose and said: “Oh, yes, God damn you! You are in my melon patch, and I am going to kill you.” The companion ran, and, as Sullivan arose to his feet to run away, the appellant shot him.

Evidence of declarations by the appellant showing a specific intent to kill were introduced in evidence. According to the' appellant’s version, a few days prior to the homicide, some unknown person had made depredations upon his watermelon patch, and a number of his choice melons marked “seed” were taken. He found and identified the rinds of five or six melons, and rinds of one or more melons not marked “seed” were found some three-quarters of a mile from his home on which were scratched some vulgar words.

The appellant, with his wife and baby, went to church on the night of the homicide, which was not far from his home. Soon after the beginning of the sesvices, the conduct of some boys indicated that they were going into his watermelon patch. He went to his home, and while there saw two boys at his well. He invited them to come in and have some watermelon, but they ran off, using some ugly words in their flight. He took a cushion, a quilt, and a shotgun and went to a point in his cotton field near the melon patch. While waiting there he saw two persons approaching. When the deceased and his companion had come near him, appellant said to them: “It looks like you boys are going to tote them all off. Get out!” One of the boys ran. The other “turned his face toward me and made one or two steps.” Appellant said: “It excited me, and I wont all to pieces.” When the boy advanced one or two steps, the shot was fired. Appellant disclaimed any intention of harming any one at the time he got his gun and went to the melon patch. He said that if both boys had run he would not have fired.

The date of the offense was laid in 1916. The indictment was presented in April, 1922.

The court instructed the jury on the law of murder and self-defense and explained to the jury that the appellant had a right to protect his property and also to defend against any act or demonstration which, as viewed from the standpoint of the appellant, reasonably appeared to seriously endanger his life, person, or his property. The- law of manslaughter was .also defined in an adequate and proper manner. The law of aggravated assault, as well as simple assault, was likewise defined. The jury was informed that if a reasonable doubt as to the appellant’s guilt of the offense of murder was entertained, he should be acquitted, although they might believe him guilty of one of the other offenses mentioned, inasmuch as. the offenses of all grades lower than murder were barred by limitation. The statutes of this state prescribe the time within which the prosecution of certain offenses will be barred by the period of limitation. Article 22S of the Code of Criminal Procedure declares:

“An indictment for all other felonies may be presented within three years from the commission of the offense, and not afterward; except murder, for which an indictment may be presented at any time.”

This .article covers the offense of manslaughter and other lower grades of voluntary homicide. White v. State, 4 Tex. App. 488; Temple v. State, 15 Tex. App. 804, 49 Am. Hep. 200; Moore v. State; 20 Tex. App. 275; Fulcher v. State, 33 Tex. Cr. R. 22, 24 S. W. 292. The decisions of this court are specific and uniform in holding that while an indictment for murder embracing lower grades of homicide may be prosecuted at any time, the right to prosecute for murder alone survives beyond the period of three years. In instructing the jury in the present case, the court followe.d the statutes and precedents as understood by this court.

Both the averment in the indictment and the evidence make it clear that the homicide took place more than three years anteri- or to the presentment of the indictment. Therefore murder was the only offense embraced in the indictment of which the appellant could have been convicted. Assuming that there was mitigating evidence, adequate in a legal sense to reduce the grade of the offense, the propriety of informing the jury in appropriate language of the nature of the other offenses embraced in the indictment for murder and made applicable by the facts developed seems obvious. Such an instruction was necessary and desirable in order to protect the interest of the accused. It was favorable to him.

The statute permitting the jury to suspend the sentence of one convicted of a felony having no application to the offense of murder, there was no error in refusing to instruct the jury upon that issue. See article 865b, Code of Crim. Proc. *

The court was right in refusing to instruct the jury that the killing of the deceased would have been justifiable if it had been committed for the purpose of preventing theft at night. Article' 1105 of the Penal Code, asserting such right, has no application to the transaction under consideration. If the deceased was in the act of taking a watermelon from the farm of the appellant, he was not committing .theft, but a misdemeanor as defined by article 1234 of the Penal Code. The case of Espalin v. State, 90 Tex. Cr. R. 629, 237 S. W. 276, deals with the subject in these words: ■

“Our conclusion is that one who kills another while the latter is engaged in an act comprehended by the terms of article 1234, supra, could not as a matter of law claim such act to be justifiable homicide, but this in nowise affects one’s right to act in defense of property as given under article 1107, Vernon’s P. C.”

Judge Lattimore, in writing the opinion, reviews the authorities and states the reasons upon which the conclusion is founded. A reiteration of these reasons in this opinion is deemed unnecessary. Suffice it to say that the ruling in the Espalin Case, supra, is deemed sound and controlling of the point under discussion in the present appeal.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

It is argued persuasively in the motion for rehearing that if this case had been tried at a time when manslaughter and the lower grades of assault had not been barred by the statute of limitations, appellant would not have been convicted of murder but of some lower grade of assault. This may be true, but the matter is entirely speculative.

We cannot agree with appellant’s further contention, made in this connection, that the evidence does not sustain the cohviction for murder. We find proof that after depredations on his melon patch appellant had contemplated the setting of a “trap gun,” and in fact had gone so far as to prepare the trap, but had not yet placed the-gun therein. When appellant found deceased in his melon patch he said: “Oh, yes, God damn you! You are in my melon patch, and I am going to kill you.” It is also shown that after the shooting a witness asked appellant if he killed anybody, to which the reply was made, “I don’t know; I shot to kill, and I know I hit them.” It is further in proof that in speaking about the homicide later appellant said:

“It wouldn’t have happened if I had known who it was. I thought it was.-. I was after somebody else. I thought I was getting another boy.”

The foregoing evidence, together with the other circumstances in proof, warranted the jury in finding appellant guilty of murder.

Appellant appears to rely largely upon the case of Teague v. State, 84 Tex. Cr. R. 169, 206 S. W. 193. As requested, we have carefully examined this case and are unable to find anything therein contrary to the .views expressed by us in the original opinion or in conflict with the law as given in charge to the jury by the learned trial judge. It appears to have been unnecessary for the court to give special charge No. 2 requested by appellant. The principle of law therein contained was specifically submitted to the jury in paragraph 12 of the main charge, directing the jury in substance that if appellant fired his gun on the occasion in question without any intent to shoot deceased, but with the purpose of frightening him, and that the firing of the gun was calculated under the circumstances to effect that object, appellant would have been guilty only of a simple assault. We find no difference in the legal effect of the charge given and the one refused.

Appellant lodges complaint at the procedure of the learned trial judge in having instructed the jury that if they should believe appellant to have been guilty either of manslaughter, aggravated assault, or simple assault, they must acquit him, as those offenses were barred by the statute of limitations. As we understand it, the proposition urged is that the court should have permitted the jury to return a verdict for manslaughter, or some grade of assault, if they found appellant to be guilty of such under the instructions of the court and then have left it to appellant to say whether he would accept the verdict or interpose his plea of limitation later. We cannot agree to the soundness of this contention. The courts are not called upon to do a useless or unnecessary thing, and the learned trial judge recognized that all offenses included under the indictment were barred save that of murder, and' it was his duty to instruct the jury as he did.

After carefully reviewing the record, we are confirmed in our view that proper disposition has been made of the case, and the motion for rehearing is overruled. 
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