¶1It would seem to be clear, from the evidence in this case, that the parties (one of whom was this appellant) implicated, in the murder of Owens, the deceased, intended to kill one McElroy, and not Owens. The law applicable to this phase of the case was fully expounded by the trial judge in his able charge to the jury. The rule of common law was that if A. shoots at B., with express malice, and by accident or mistake kills C., the offense would be what we call murder in the first degree. Under our code, to constitute murder of the first degree, or rather a murder upon express malice, it must and can only be a malice directed towards the particular individual, and if another than the one against whom this malice is conceived and entertained be the mistaken victim of such malice, the crime is murder of the second degree. (McCoy v. The State, 25 Texas, 38; Ferrill v. The State, 43 Texas, 503; McConnell v. The State, 13 Texas Ct. App., 390; Clark v. The State, 19 Texas Ct. App., 495.)
¶2Supposed defects in the charge of the court are the only errors pointed out or complained of by appellant on this appeal. We have read the charge carefully, and in our opinion it is all the law demands upon the facts of this case.
¶3There is no error in this record, and forty years in the penitentiary is not excessive punishment when the facts connected with the murder, and the motives which induced it, are properly considered. The judgment is in all things affirmed.
¶4Affirmed.