Boyd v. State , 28 Tex. Ct. App. 137 ( 1889 )

Willson, Judge.

While the charge of the court explains express and implied malice, it fails to define malice aforethought, and is therefore-fundamentally erroneous. Babb v. The State, 12 Texas Ct. App., 491; Holmes v. The State, 11 Texas Ct. App., 223; Garza v. The State, Id., 345; Crooks v. The State, 27 Texas Ct. App., 198.

An important issue in the case was whether or not the mortal blow was inflicted by defendant with the intent to kill the deceased. His declarations, made immediately after the blow was inflicted, are to the effect that he did not intend to kill the deceased. In view of the evidence presenting this issue, we think the court should have charged the law as declared in articles 612 and 614 of the Penal Code. Special instructions calling attention to this phase of the case were requested by defendant’s counsel, and while such special instructions did not present the law accurately, they were sufficient to direct the mind of the court to the issue and the omission from the charge of that issue.

We are of the opinion that the evidence presented the issue of manslaughter, and that appropriate instructions should have been given the jury upon that grade of homicide.

We think the objections urged to the explanation of implied malice given in the charge are sound. It requires, in order to reduce the homicide to a lower grade than murder in the second degree, that the homicide .should have been committed under such circumstances as fail to show that it was committed under the immediate influence of sudden passion, arising from a sudden and powerful provocation, as a violent blow or the like, etc.; whereas, the law is that if it was committed under the immediate influence of sudden passion arising from an adequate cause— that is, such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection-—-the homicide would be manslaughter and not murder. Penal Code, arts. 593-95; Morgan v. The State, 16 Texas Ct. App., 593. In this case a proper explanation of implied malice would have been: “Implied malice is that which the law infers from or imputes to certain acts. Thus, when the fact of an unlawful killing is established, and there are no circumstances in evidence which tend to establish the existence of express malice, nor which tend to mitigate, excuse, or justify the act, then the law implies malice. If, therefore, you believe from the evidence that the defendant unlawfully killed the deceased, and in doing so did not act under the immediate influence of sudden anger, rage, resentment, or terror arising from an adequate cause—that is, such cause as would commonly produce such passion in a degree that would, in a person of ordinary temper, render the mind incapable of cool reflection—the killing would be upon implied malice, and he would be guilty of murder in the second degree.”

We do not think that the evidence demanded any instructions upon the law of self-defense. While it tends to show an unlawful attack by deceased upon defendant, it does not show that such attack was of that, character which would produce a reasonable expectation or fear of death or serious bodily injury to the defendant. Penal Code, art. 574.

For the errors and omissions in the charge of the court which we have •specified, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Hurt, J., absent.