¶2 December 12,1923.
¶3 — The The position taken hy the appellant in his motion and oral argument is that the evidence does not warrant a conviction for the offense of murder.
¶4 The weight to be given to evidence of antecedent, quarrels and hostile attitude of the appellant towards the deceased would remain a question for the jury, notwithstanding the evidence of the resumption of friendly relations. Aside from this, however, we think the evidence is such as to preclude the authority of this court to hold, as a matter of law, that the issue of murder was not raised. The homicide took place at the home of the appellant. The eyewitnesses gave testimony of a cogent nature presenting the issues of manslaughter and self-defense.
¶5 The dying declaration which is copied in the original opinion is opposed to the mitigating and defensive testimony adduced upon behalf of the appellant. It appears from the dying declaration that the witnesses, relied upon by the appellant, held .the deceased while the appellant was beating him; that the deceased was unable to do anything much; that Mary Williams took the knife of the deceased .out of his pocket and that he had nothing with which to defend himself; that the appellant slipped out with his gun and then shot the deceased. Whether this or the theory presented by the appellant and his witnesses was the true one was necessarily a question for the jury to answer. It is not our understanding that it was essential that the State prove express malice. The act of the thirty-third Legislature, in amending the statute on murder, did not change the law as previously construed by this court, authorizing a conviction for the offense of murder, where the death penalty was not assessed, upon implied malice aforethought. See Shaw v. State, 71 Texas Crim. Rep. 630; Cook v. State, 71 Texas Crim. Rep. 537; Andrus v. State, 73 Texas crim. Rep., 334; Sorrell v. State, 74 Texas crim. Rep. 505; Lowe v. State, 84 Texas Crim. Rep., 236, 206 S. W. Rep., 519.
¶6 The homicide being conceded, the testimony touching the incidents attending the homicide being conflicting and the evidence revealed in the dying declaration being such as, if believed, would warrant the inference, at least, of implied malice aforethough, the conclusion expressed in the original opinion must be. adhered to.
¶7 The motion is overruled.
¶8 Ov&rruled.