Hodges v. State, 3 Tex. Ct. App. 470

Hodges v. State

3 Tex. Ct. App. 470 | Tex. App. | 1878

White, J.

As was said, by this court in the case of Lockwood v. The State, 1 Texas Ct. App. 749, “ our statute provides that, c whenever it appears, upon a trial for an assault with intent to murder, that the offense would have been murder had death resulted therefrom, the person committing the assault is deemed to have done the same with that intent’ (Pasc. Dig., art. 2159); and our Supreme Court has said that, in assault with intent to murder, the true criterion is : Had death ensued, would the result have been murder? Yanez v. The State, 20 Texas, 660. Again, it should be remembered that every killing is not murder,' nor is every unlawful killing murder. Murder, as an offense, is distinctly defined and has a distinctive meaning attached to it by our law, and no killing is murder unless it contains the elements and ingredients of that offense as defined by the law. If, then, the criterion by which to test the offense of an assault with intent to murder be that, had death resulted, it would or must have been murder, how is a jury to determine that question unless murder is defined, or, in connection with the facts of the case, they are so charged and instructed, in substance, as to the elements and ingredients of that crime, as that they can say that the crime would or would not have been murder had death resulted?” 1 Texas Ct. App. 749.

Now, malice is the essential ingredient and requisite element to murder of all kinds, and without this element and ingredient no homicide can be murder under our law. Nor could a party be convicted of an assault with intent to *473murder unless he was incited, in the commission of the assault, by malice—malice being as much an element and ingredient of this offense as of the other". It follows, as has been repeatedly decided, that neither in a charge given by a court in a case of murder nor of assault with intent to murder can it be said that the charge presents “the law applicable to the case,” which fails to define or instruct the jury as to the meaning of the term “malice.” Anderson v. The State, 1 Texas Ct. App. 730; Smith v. The State, 1 Texas Ct. App. 517; Williams et al. v. The State, decided at the Tyler term, 1877, reported in the Texas Law Journal, No. 18, p. 138, ante, p. 316.

The charge of the court in the case we are considering nowhere defines or explains what the term “malice,” as used in the definition of murder, means.

Again, the court charged the jury as to the law of manslaughter, but failed to explain to the jury that they could only find the defendant guilty of an aggravated assault in case they came to the conclusion from the evidence that, had death resulted from the assault, the offense would have been manslaughter and not murder. It is true that they were instructed that “ murder is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offense to negligent homicide or manslaughter;” but they are nowhere told what the verdict should be in case the killing would have been manslaughter. This was an error of omission which might well be calculated “ to injure the rights of the accused.”

It is unnecessary to discuss the other errors complained of, as they are not likely to occur upon a second trial. But, for the errors in the charge of the court, as above indicated, the judgment must be reversed and the cause remanded.

Reversed and remanded.