Dwyer v. State
12 Tex. Ct. App. 535
Tex. App.
1882
Check Treatment
Willson, J.

The indictment is as follows:

“In the name and by the authority of the State of Texas. The grand jury of Fort Bend county present in the District Court of said county, that, about the 16th day of October, A. D. 1881, in Fort Bend county, Texas, William Dwyer did with malice aforethought kill H. Chatham by striking him with a scantling; against the peace and dignity of the State.” Upon this indictment the defendant was tried and convicted of murder in the second degree and his punishment assessed at confinement in the. penitentiary for fifty years.

The principal question presented in this case is the sufficiency of the indictment. It is the exact form prescribed for the crime of murder by the act of March 26, 1881. (Gen. Laws 17th Leg. chap. 57, p. 60, form No. 2.) It is urged that this form is not an “indictment ” within the meaning of section 10 of the Bill of Rights. While we hold that several of the forms prescribed by that act are *540insufficient ancl invalid because they do not set forth the. acts, facts and omissions which constitute the offenses they are intended to charge, we are of the opinion that the form prescribed for minder is not subject to this objection. It is very brief, and yet we think 'it contains every essential fact and element constituting the crime of murder. What is murder as defined by our Code ? In substance it is the killing of a human being, with malice aforethought. It is an offense composed of but few elements; in fact but two, 1, a killing, and 2, that the act of killing was committed with malice aforethought. This indictment alleges the act of killing. It alleges that the killing was with malice aforethought on the part of the slayer. These are not allegations of legal results or conclusions, but of acts and facts which, taken together, complete the. offense of murder. By the allegation of these acts and facts the defendant is fully informed of the ■nature and cause of the accusation against him. He is informed that about a certain time, in a certain county in the State of Texas, he killed a certain person by striking him with a scantling, and that he committed this act with malice aforethought. He knows from this information the facts that he is called upon to meet, and these facts, when proved, constitute murder. We therefore hold this indictment to be good.

There are other questions presented in this case by defendant’s counsel, but we are of the opinion that there are no such errors disclosed by the record as would require or oven warrant us in reversing the judgment of conviction. The evidence showed an unprovoked murder without mitigation, justification or excuse, and would well have supported, we think, a conviction of murder in the first degree. The court did not err in refusing to charge the law of negligent homicide. There were no facts in the case which would make such a charge proper.

The judgment is affirmed.

Affirmed.