
    CLAY v. STATE.
    (No. 3276.)
    (Court of Criminal Appeals of Texas.
    Oct 28, 1914.
    On Motion for Rehearing, Nov. 25, 1914.)
    1. Ceiminal Law (§ 1086) — Appeal—Request to Charge — Refusal—Exceptions.
    Where there was nothing to indicate that a refused request to charge was asked before the court read its charge to the jury, as required, and there was also nothing to show that exception was reserved to the charge before it was read to the jury, the refusal of the request could not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.)
    2. Criminal Law (§ 829) — Appeal—Refusal op Requests — Prejudice.
    Where, in a prosecution for homicide, the court charged on the presumption of innocence and reasonable doubt, accused was not prejudiced by the court’s refusal to charge that, if there was a reasonable doubt arising on the facts between the issue of manslaughter and self-defense, accused was entitled to the benefit thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    3. Homicide (§ 332) — Jury’s Finding — Conclusiveness.
    Where the state’s case presented ample evidence to sustain a conviction of manslaughter, and accused’s case presented the issue of self-defense, the jury’s verdict, convicting accused of manslaughter, was conclusive on the facts.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 699-704; Dec. Dig. § 332.]
    4. Criminal Law (§ 884) — Trial—Verdict —Indeterminate Sentence.
    A verdict convicting accused of manslaughter and fixing the punishment is not objectionable because not indeterminate, since, under the indeterminate sentence law, the jury finds the verdict, and the court fixes the punishment from the lowest term specified to the amount fixed by the jury.
    [Ed. Note. — For- other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526; Dec. Dig. § 884.]
    5. Criminal Law (§ 1118) — Appeal—Motion for New Trial — Bill op Exceptions.
    A ground for new trial, consisting of an exception to the court’s refusal to suspend the trial until an absent witness could be brought into court, could not be reviewed, where no facts were stated in connection therewith, and there was no bill of exceptions verifying the matter in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2926; Dec. Dig. § 1118.]
    On Rehearing.
    6. Criminal Law (§ 789) — Degree op Offense — Reasonable Doubt — Instructions.
    In a prosecution for homicide, in which accused relied on self-defense, the court charged: “Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant with a deadly weapon in a sudden passion arising from an adequate cause, and not in defense of herself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, with intent to kill deceased, etc., you will find the defendant guilty and assess her punishment,” etc. The court also charged that in all criminal cases the burden of proof was on the state, and accused was presumed innocent until her guilt was established by legal evidence beyond a reasonable doubt, and, in case the jury had a reasonable doubt of accused’s guilt, they should acquit. Held, that such charge constituted a sufficient charge on reasonable doubt arising on the issue between manslaughter and self-defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, Í880, 1904-1922, 1960, 1967; Dec. Dig. § 789.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Josephine Clay was convicted of manslaughter, and she appeals.
    Affirmed.
    Stanley Thompson, 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
    
   DAVIDSON, J.

Appellant killed her husband under circumstances, as shown by the state, upon which the court submitted only the theory of manslaughter. The jury gave her five years. The court also submitted her theory of the case; that is, self-defense. There was no objection to this charge urged by appellant, though she asked one special charge.

This in effect, if given, would have informed the jury, if there was a reasonable doubt arising on the facts between the issue of manslaughter and self-defense, appellant would be entitled to the benefit of the doubt. This was not given by the court. There is nothing to indicate at what time this 'charge was asked, whether before the court read the charge to the jury or afterward. Nor is there anything in the record showing that exception was reserved to the court’s charge before being read to the jury.

Therefore, under the late statute, this matter cannot be revised. Even if it could be, we hardly think the matter was of sufficient importance to require a reversal. The court gave the jury an instruction on presumption of innocence and reasonable doubt. This general charge may not always be sufficient. Sometimes where the case is tried upon critical lines, and is so presented, an omission to give this charge between the degrees of homicide might result detrimentally to the defendant. In such case it should be given, and it might become material error not to give it, But anyway there were no exceptions reserved to the charge before being read to the jury, and it is not shown this charge was asked before argument.

It is contended that 'the evidence is not sufficient to support the finding of the jury. The state’s case discloses ample evidence. The defendant’s case presented the issue of self-defense. The jury has the right to solve these matters, and where there is a conflict in the testimony, that for the state supporting the conviction and that for the defendant justifying an acquittal, the jury’s finding is conclusive.

There is also a suggestion, in the motion for new trial, that the jury should have brought in a verdict under the indeter-mínate sentence law. The jury finds a term of years and the court fixes the punishment from the lower to that fixed by the jury. The jury does not fix the indeterminate sentence.

There is another question raised in the motion for new trial with reference to the absence of the witness Crooker and failure of the court to suspend the trial until he could be brought into court. This is a ground of the motion for new trial, and no facts are stated in connection with it, and no bill of exceptions verifying the matter; therefore it cannot be considered.

As the record is presented, the judgment will be affirmed.

On Motion for Rehearing.

On a former day of this term, the judgment herein was affirmed. Among other things, appellant’s motion for rehearing insists the court was wrong in holding he should have reserved an exception to the general charge for the reason that the charge was correct as far as it went, and no exception, therefore, could be made, and the only thing that appellant could do was to ask the charge that was asked. In this connection he says the court erred also in assuming that the charge requested was on the question of reasonable doubt as to whether defendant was guilty of murder or manslaughter, and the requested charge presented reasonable doubt between manslaughter and self-defense. We find, upon inspection of the original opinion, that it states that - this charge in effect, if given, would have informed the jury, if there was a reasonable doubt arising on the facts between the issue of manslaughter and self-defense, appellant would he entitled to the benefit of the doubt. That, as we understand, was appellant’s requested instruction, and we did hold that there was no error in refusing to give it, and also stated there was no exception taken before the charge was read to the jury, at least none shown by the record. This is necessary under the recent statute, and, if the court’s charge was wrong upon this proposition, appellant should have excepted to it on that ground, and, if he desired a special charge, ask it.

But we are of opinion the court sufficiently gave reasonable doubt on this proposition from two standpoints. In submitting the law of manslaughter, the court uses this language:

“Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant with a deadly weapon, in a sudden passion arising from an adequate cause, as the same has been hereinbefore explained, and not in defense of himself against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, with intent to kill, etc., you will find the defendant guilty and assess her punishment at confinement in the penitentiary for not less 'than two nor more than five years.” .

This required the jury to find that she was guilty of manslaughter beyond a reasonable doubt, to the exclusion of self-defense ; but the court went further in the following language:

“In all criminal cases the burden of proof is on the state. The defendant is presumed to be innocent, until her guilt is established by legal evidence, beyond a reasonable doubt; and, in case you have a reasonable doubt as to the defendant’s guilt, you will acquit her, and say by your verdict not guilty.”

Usually these charges are sufficient, but, as stated in the original opinion, there might be cases upon such close lines that it might become necessary for the court to charge the reasonable doubt between propositions that are involved in homicide cases.

We are of opinion that the motion for rehearing is not meritorious from any viewpoint of this record.

Believing the original opinion to be correct, the motion for rehearing is overruled.  