Winkler, J.
This is another branch of the same affair mentioned in the case of these appellants against the State, from the same District Court, upon a similar indictment and almost the same state of facts. The most important difference between the two cases is, that in that case the indictment was for the murder, by hanging, of an unknown ^ person, and the verdict being for murder in the first degree, with punishment assessed at imprisonment in the penitentiary for life, whilst in the present case the indictment charges the murder, by hanging, of one Sam Black, the verdict being for murder" in the second degree, with punishment assessed at confinement in the penitentiary for a period of ten years.
In both cases the evidence finds these appellants together, in charge of two prisoners, at the town of Woodville in Tyler County. From Woodville they were traced, by the evidence, to a point in Polk County not far from the line of Liberty County, known as the Big Thicket; and a few days after they were last seen with the prisoners two dead bodies-were found at a clay-root, in a hole made by the uprooting of a pine tree, each with a piece of rope round his neck, near a leaning tree having upon it marks indicating that the two men had been hanged upon it. There can be no question as to the fact that the appellants had two men in custody at Woodville, and that they were seen at different places on the road to a point in the near vicinity of where the two dead bodies were found; nor does it seem there is room for doubt that the two men whose dead bodies were found had met death in the manner set out in the indictment. In the present case the important and material inquiries were these, as we understand the record : —
1. Was either of the two dead bodies identified as one of the persons held by the defendants ?
2. Was either identified as the Sam Black alleged in the indictment to have been murdered? and if so, —
3. Were these appellants the perpetrators of the murder?
These were all questions of fact, to be determined by the jury from the evidence, and under appropriate instructions by the court. It is urged here in behalf of the appellants, —
1. That the charge was defective and incorrect as an ■enunciation of the law applicable to the case as made by the evidence; and, among other reasons, it is urged that the ■charge of the court invades the province of the jury, and assumes that the defendants are the murderers, and that the charge on circumstantial evidence does not state the law clearly.
2. That it was not proved on the trial that Sam Black, •as charged in the indictment, was the name of the deceased.
We set out the portions of the charge objected to : “In •determining whether or not a murder has been committed with express malice, the important questions are: Do the -external facts or circumstances at the time, having connection with or relation to the killing, furnish satisfactory evidence of the existence of a sedate, deliberate mind on the part of the persons killing, at the time they did the act? Do they show a formed design to take the life of the person slain, or to do him some serious bodily harm which in its necessary or probable consequences may end in his •death, or do they show such general reckless disregard of human life as necessarily includes a formed design against the life of the persons slain ? If they do, then the killing, if it comes within the definition of murder in other respects, would, as far as express malice is concerned, be murder upon express malice, and murder in the first degree.”
The latter portion of the succeeding paragraph of the •charge is also complained of, which is as follows : —
“ But if you do not believe that the defendants did take the life of said Sam Black, as alleged in the indictment, with a sedate and deliberate mind, and in pursuance of a formed design on the part of defendants, then you will find -defendants not guilty of murder in the first degree; or if you entertain a reasonable doubt as to the guilt of the defendants, you will find them not guilty of murder in the first degree.”
The particular objection to this latter portion seems to be that it ought to have applied the reasonable doubt to the second as well as to the first degree. It is a sufficient, answer to this position to say that the charge of the court, on murder in the second degree and on implied malice concludes in these words : —
“ But if you do not so believe that the defendants did, as alleged in the indictment, take the life of said Black, and upon implied malice, as that term has been explained to you in this charge, you will find the defendants not guilty or, if you entertain a reasonable doubt, arising out of the evidence in this case, as to their guilt, you will find the defendants not guilty.”
We dispose of this branch of the subject with the remark that it appears from the record that the reasonable doubt was applied to both the first aud second degrees of murder by the charge of the court.
As to that portion of the charge first copied above, when standing alone and disconnected with other portions of the charge, where an application of the principle enunciated is made to the facts, we fail to discover that it is susceptible of the construction placed upon it by the defendants’ counsel, to wit, that it assumes the guilt of the defendants, instead of leaving the question of their guilt or innocence to be determined by the jury. We do not see that the bare fact that a change of the pronouns employed in the charge from the singular to the plural number could, by any sort of probability, have had that effect; otherwise the charge is supported by and is in accord with the leading authorities on the subject of murder on express malice. McCoy v. The State, 25 Texas, 41; Atkinson v. The State, 20 Texas, 533; Jordan v. The State, 10 Texas, 492; Williams v. The State, 1 Texas Ct. App. 316; Tooney v. The State, 5 Texas Ct. App. 163; Cox v. The State, 5 Texas Ct. App. 493.
So, whilst not strictly necessary in the present case, we find no material error in the charge ; on the contrary, we think it a substantially correct charge as to what would constitute a killing on express malice, as applicable to murder in the first degree ; and when considered with reference to those portions which apply to the case as developed by the evidence, we find nothing in it, or in fact any other portion of the charge, which invades the province of the jury.
As to the charge on circumstantial evidence, we deem it amply sufficient, as embracing every feature of a proper charge on that subject. It is as follows: “ When, as in this case, the State relies upon circumstantial evidence to convict, the testimony must exclude, to a moral certainty, every other hypothesis but the one of guilt of the defendants as charged in the indictment, or you must acquit. And each fact in a chain of facts from which the main fact in issue is to be inferred must be proved by competent evidence and by the same weight and force of evidence as if each- one was the main fact in issue, and all the facts proved must be consistent with each other and the main fact to be proved. If you can reasonably account for or explain the facts and circumstances in evidence before you in this case, in any way consistently with the defendants’ innocence, without resorting to unreasonable doubts and theories, then you should do so, and acquit. But if you cannot account for nor explain the facts and circumstances detailed before you in this case, upon any reasonable ground consistently with the defendants’ innocence, then, if you cannot do this, you should convict.”
This charge embraces every feature of the law as to the conclusiveness of circumstantial evidence, and the necessity of agreement in all its parts in order to warrant a conviction upon such testimony even in matter’s of the gravest concern, and is fully as favorable to the defendants as the authorities warrant. Hunt v. The State, 7 Texas Ct. App. 212, and authorities there cited; Myers v. The State, 7 Texas Ct. App. 640. The law does not require such a charge to be couched in any particular language; so it embodies the substance in plain language, the demands of the law are satisfied. Myers v. The State, ante. We are of opinion the charge of the court, as given in the general instructions as to the lawof the case, was sufficient to inform the jury as to the law of every legitimate view they could have taken of the evidence; and this being the case, the special instructions asked by the defendants’ counsel became unnecessary and were properly refused. The charge, we are of opinion, sufficiently guarded every substantial right of the defendants, and is far from material error.
Whether or not it was proved that the name of the deceased was Sam Black, the jury were instructed very favorably for the defendants: that the reasonable doubt ‘ ‘ applied to all of the material averments in the indictment, including the name of the party alleged to have been killed.” The name charged in the indictment is Sam Black. It is manifest, from the testimony, that he and his fellow-prisoner were almost unknown in the community and among the people where this double homicide occurred. The object of the law in requiring that the name of the injured party should be stated, if known, being that those accused may be informed of the charge against them, and what they will be called on to defend against, it would seem that it would be sufficient if it had that effect; so that, if the defendants knew him by the name of Sam Black, and the proofs established that fact, and it was not proved that this was not his true name, and that this was the name the defendants knew him. by, the demands of the law would be satisfied. It is not shown that the name given to the deceased in the indictment was not the true name; one witness, to whom he seems to have been a stranger, has a rather indistinct impression that he had heard him called by some other name, and with this exception there is no conflict in the testimony on the subject. That the defendants knew him as Sam Black is, we think, beyond question. The law is not very precise in its demands on this subject any way. Cotton v. The State, 4 Texas, 260, and authorities there cited; Henry v. The State, 7 Texas Ct. App. 388.
We are of opinion there was no material variance between the allegations and the proofs as to the name of the deceased, nor is there any sufficient evidence that the name in the indictment was not the true name; and there is evidence that he was known by the defendants by that name, and not by any other, so far as we see from the statement of facts.
The cause of the appellants has been forcibly and ably presented. We have not attempted in this opinion to notice particularly all the subjects discussed in briefs and oral arguments ,• still the matters set out in the different bills of exception and motions have been considered with all the care their importance and the rights of the appellants demand. And upon a view of the whole case, as here presented, we find no such error as would warrant an interference with the judgment of the District Court, and it is affirmed.
Affirmed.