Isbell v. State
31 Tex. 138
Tex.
1868
Check Treatment
Lindsay, J.

—The error committed in the trial of this ease in the district court is of such a nature that we are constrained to reverse it.

The indictment is for murder generally, without appropriate allegations fixing the degree of murder. It neither avers *139that it was committed by poison, starving, torture, or with express malice; nor does it allege that it was committed in the perpetration, or in the attempt at the perpetration, of arson, rape, robbery, or burglary. The verdict simply responds, “We the jury find the defendant guilty,” without determining whether guilty of murder of the first or second degree. Notwithstanding the charge in the indictment is the general charge of murder, with malice aforethought, yet the jury might, under such general averment, have properly found the accused guilty of murder in the first or second degree, according to what, in their judgment, the facts might seem to warrant. But the verdict as rendered may he a true response to the allegations in the indictment, and yet it does not settle what offense was actually committed by the accused, whether murder in the first or second degree, and the court could not with any certainty or propriety pronounce judgment upon such a finding. Article 2268, Paschal’s Digest, prescribes that the jury shall find by their verdict whether the murder is of the first or second degree. Their failure to do so may, perhaps, he ascribed to the remissness or oversight of the court in neglecting to so charge them.

The judgment of the court below is therefore reversed, and a new trial awarded.

¡Reversed and remanded.