33 Tex. 664 | Tex. | 1871
The charge of the court does not contain an important provision of the law, as found in the eighth section of the fifth article of the Constitution of 1869.
The jury were not informed by the court that the punishment for murder in the first degree, as heretofore provided by laws enacted prior to the adoption of the new Constitution, might he commuted by the jury to imprisonment at hard labor for life. (See Paschal’s Digest, Art. 3059; Johnson v. The State, 27 Texas R., 766.) This must be held as error.
If it were shown by the record that Mrs. Marshall, immediately before the killing of John Marshall, told her husband, Jasob Marshall, what the deceased had said to her, it would have been properly left to the jury to consider whether the insulting language used to the appellant’s wife did not reduce the crime to manslaughter. (See Paschal’s Digest, Arts. 2250 and 2254.) The evidence being somewhat uncertain on this point, we will give no further opinion.
But for the reason first given in this opinion, the judgment of
Reversed and remanded.
