No. 3775 | Tex. App. | Apr 17, 1886
It is insisted in the first error assigned that the court’s charge to the jury in the definition given of implied malice was incorrect, erroneous, and calculated to mislead the jury. Approved charges upon malice, and upon malice express and implied, will be found in Willson’s Criminal Forms, pages 332 and 333: “Implied malice is that which the law infers from, or imputes to, certain acts. Thus, when the fact of
Whilst the seventh paragraph of the charge may not be as full as it might be, and perhaps should have been, upon implied malice, yet, in the absence of a bill of exceptions taken to it, and when the charge is considered as a whole, we can not say that the omission complained of has not been cured in subsequent portions thereof, and even if not, whether the omission would be reversible error in the absence of an exception, or, at least, a special instruction covering the supposed defect. That a charge should be considered as a whole, and not by isolated parts or paragraphs, in determining its sufficiency, is the well established rule of practice in this State, and if as a whole, it is sufficient, the demands of the law are met. (Clark’s Crim. Law, p. 515, note 204; Elam v. The State, 16 Texas Ct. App., 34; Lewis v. The State, 18 Texas Ct. App., 401.) We are of opinion that the complaint as to the seventh paragraph is cured by the ninth paragraph of the charge, and that, when the two are taken and considered together, the jury could not have been misled by the former.
Defendant’s motion for a new trial was not filed within two days after the conviction, as required by law (Code Crim. Proc., Art. 779), and it is therefore insisted by the Assistant Attorney General that the action of the court in overruling it should not be revised by this court.
“A new trial, must be applied for within two days after conviction; but for good cause shown, the court, in cases of felony, may allow the application to be made at any time before the adjournment of the term at which the conviction was had.” (Code Crim. Proc., Art. 779; Bullock v. The State, 12 Texas Ct. App., 42.) it appears from the record that the court entertained the motion for a new trial, although not filed within the prescribed time, and considered the same upon its merits. This action was within the discretion of the court, and must be presumed to have been upon good cause shown. (Hernandez v. The State, 18 Texas Ct. App., 147.) In the case under consideration, no objection was made to the motion upon the ground stated, in the court below, and the court having heard the motion, evidence
In part, the motion is based upon newly discovered testimony. This testimony is certainly most important. It cannot be said that it is not probably true, because it is neither unreasonable nor improbable, and is in harmony with the testimony adduced at the trial; and, we think, ample reason is shown why it could not and was not discovered by defendant before or upon the trial. The testimony upon which this conviction rests, as it is manifested by this record, does not impress us with the conviction that the newly discovered testimony should not and will not likely change the result upon another trial.
We are of opinion that the court should have granted a new trial, and we therefore reverse the judgment and remand the cause for a new trial.
Reversed and remanded.