Martinez v. State

30 Tex. Ct. App. 129 | Tex. App. | 1891

ON MOTION FOR A REHEARING.

DAVIDSON, Judge.

At a former day of this term the judgment in this cause was affirmed without a written opinion. There is a bill of exceptions in the record reserved to the charge, because “it did not properly define express malice aforethought or implied malice afore- . thought.”

Since the affirmance appellant files a motion for rehearing, as follows, to-wit: “The court erred in not sustaining defendant’s bill of exception number 1, which bill complained of the error of the trial court in not charging upon and fully explaining to the jury malice aforethought, ’ ’ and in support of appellant’s contention that the court ought to have explained to the jury malice aforethought, he submits the attached authorities: Washington v. The State (not reported); Ainsworth v. The State, 29 Texas Court of Appeals, 599; both decided at the present term of this court. The two cases cited were decided on the same day on which appellant’s case was affirmed, and both of said cited cases were reversed, among other reasons because the trial court in his charge failed to define malice. The question decided in said two cases is not a novel proposition in this State, and was not prior to the two cases cited. Crook v. The State, 27 Texas Ct. App., 198; Childres v. The State, 13 S. W. Rep., 650; Willson’s Crim. Stats., sec. 1061; Richardson v. The State, 28 Texas Ct. App., 216.

By reference to the bill of exception mentioned in the motion for rehearing, it will be seen that it was reserved to the supposed error on the part of the trial court in failing to define express and implied malice. The charge thus defines express malice: “Express malice is where one with a sedate and deliberate mind and formed design unlawfully kills another, Avhich formed design is evidenced by external circumstances discovering that inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm, or any other circumstances showing such sedate and deliberate mind and formed design unlawfully to kill another or to inflict serious bodily harm, which might probably end in the death of the person upon whom the same was inflicted.

“Implied malice is that which the laAV infers from or imputes to certain acts. Thus when the fact of an unlawful killing is established and there are no circumstances in eAddeuce which tend to establish the existence of express malice, nor which tend to mitigate, excuse, or justify the act, then the law implies malice.”

These charges are precisely in the language contained in Willson’s Criminal Forms, Ros. 710, 711, and which have been recognized as the correct rule for charging upon and defining the two phases of malice. Jordan v. The State, 10 Texas, 479; McCoy v. The State, 25 Texas, 33; Farrer v. The State, 42 Texas, 271; Plasters v. The State, 1 Texas Ct. App., 673; Cox v. The State, 5 Texas Ct. App., 493; Sharpe v. The State, 17 Texas Ct. App., 486; Harris aa The State, 8 Texas Ct. App., 90; Douglass v. The State, Id., 520; Neyland v. The State, 13 Texas Ct. App., 536; Reynolds v. The State, 14 Texas Ct. App., 427; Turner v. The State, 16 Texas Ct. App., 378; Hubby v. The State, 8 Texas Ct. App., 597; and numerous other authorities.

While the bill of exceptions is not reserved to any supposed defect of the charge in failing to define the term malice or malice aforethought, yet the question sought to be raised will be treated as if it was so reserved. By an examination of the charge we find this language contained therein: “Malice, is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.” This form of definition is now and has been recognized as a correct one by the courts of last resort, as announcing a true rule by which to measure malice under our statute of murder. Another rule laid doAvn as equally correct is thus defined: “Malice in its legal sense means the intentional doing of a wrongful act toward another without legal justification or excuse.” Sometimes oue of these forms is employed in the charge and sometimes the other, and some of our judges use both. It is wholly immaterial which is used, as they convey substantially the same idea. Judge Clark, in a. carefully considered opinion, in speaking of a proper definition of the term malice, said that “a perfectly exact and satisfactory definition of that term, signifying its legal acceptation in a form at once clear and concise, has been often attempted, 'but with no very satisfactory permanent results. The differing minds of different courts have employed different terms and language in an attempt to convey substantially the same meaning; and while a general similarity is apparent in all the definitions, the legal mind has not yet crystallized the substance of the term into a terse sentence readily comprehensible by the average juror. About as clear, comprehensive, and correct definition as the authorities afford is, that ‘malice is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.’ ” Harris v. The State, 8 Texas Ct. App., 109, 110; McKinney v. The State, 8 Texas Ct. App., 643; Gallaher v. The State, 28 Texas Ct. App., 266, and authorities cited; Bramlette v. The State, 21 Texas Ct. App., 619; Pickens v. The State, 13 Texas Ct. App., 357, and cited authorities; Hayes v. The State, 14 Texas Ct. App., 331, 332; 3 Crim. Law Mag., 216; Willson’s Crim. Forms, 708.

The authorities sustain the definition of malice embraced in the court’s charge as given in this case. Other language might be used to convey the same idea, and other words could be employed that woiild give as satisfactory definition of the term malice as is employed in the two forms quoted above. We do not intend to say that such a result could not be reached. We simply say that the forms given by Judge Willson are sufficient and are abundantly supported by the authorities. We can not agree with appellant that malice or malice aforethought is not defined in the charge, because the record shows directly to the contrary from the above quoted charge defining malice. We find that term fully defined. Hot only so, but the terms “express malice” and “implied malice” are also fully and legally defined in said charge.

The two recent authorities cited by appellant are not applicable to this case. Malice is defined in the charge in this case, whereas in those eases it was not defined, nor was a definition thereof sought to be given by the court.

The grounds of the motion for rehearing are not sustained by the record, but pointedly contradicted thereby.

The record shows a cruel and heartless killing of a man and his wife in the dark hours of the night. They were evidently attacked while sleeping in their bed in their own house, and by defendant, whom they trusted as their friend, and whom they afforded the friendly protection of their home and roof. When they were aroused by the murderous assault of defendant they fled from their house into the protection of the night outside. Here they were pursued by his fiendish malice and chased down and stabbed to death in an atrocious manner in their own yard. The verdict in assessing his punishment at confinement in the penitentiary for a term of years was lenient and merciful, and he has reason to congratulate himself therefor.

We see no reason why we should recede from our former opinion, and the motion for rehearing is therefore overruled.

Motion overruled.

Judges all present and concurring.