Pickens v. State , 13 Tex. Ct. App. 353 ( 1883 )

Willson, J.

Defendant stands convicted of an assault upon one Charlie Stephens, with intent to murder him. Without reciting or commenting upon the evidence upon which the conviction is based, we will say that to our minds it is very unsatisfactory, and its credibility in some important respects not unquestionable. There is, however, enough evidence to support the conviction, and this being the case, the jury were the exclusive judges of the credibility of the witnesses, and the weight to be given their testimony, and we would not, because of its uncertain and unsatisfactory character to our minds, disturb the verdict of the jury.

In view, however, of the very meagre evidence by which the defendant was identified as the party who did the shooting, and the intent with which the act was committed, whether to kill or merely to frighten the party alleged to have been assaulted, and also in view of the fact that defendant moved the court to postpone the trial to enable him to obtain material witnesses, and of the further fact that the court refused to allow him to examine a witness offered, because the witness had not beén placed under the rule with the other witnesses in the case, although this was a matter of discretion with the court, we are of the opinion that, under all the circumstances, the court should have granted the defendant’s motion for a new trial, though it was not in strict compliance perhaps with the rules governing such motions.

We think, further, that the court erred in its charge to the jury in not defining malice correctly. We copy the definition given: “Malice means that state of a wicked and depraved mind fatally bent upon mischief. Malice is when one with a sedate and deliberate mind and formed design kills another, and such killing is murder.” It is the last sentence of the clause quoted that we think is erroneous. It instructs the jury, without qualification, that it is murder when one with a sedate and deliberate mind and formed design kills another. Such is not the law.

Excusable or justifiable homicide may be committed with, a sedate and deliberate mind and formed design to kill. The sheriff, when he executes the death penalty upon a convicted murderer under and by virtue of a lawful death warrant, does so with a sedate and deliberate mind, and a formed design to kill the man. A man in the lawful defense of his person or his property may kill another without Committing murder, and yet he may commit the act with a sedate and deliberate mind, and a formed design to kill. To make the killing murder, it must not only be committed with a sedate and deliberate mind and a formed design to kill, but it must be done under circumstances which do not justify or excuse the act. It must be an unlawful killing. There are a number of decisions of this court which elaborately consider the question of what is malice in law, and which contain approved definitions of the term. We refer to them in support of our conclusion that the charge given upon the subject in this case is not a correct definition of malice, and was well calculated to mislead the jury. (Cox v. The State, 5 Texas Ct. App., 493; Looney v. The State, Id., 188; Harris v. The State, 8 Texas Ct. App., 109; McKinney v. The State, Id., 626.)

The judgment is reversed and the cause remanded for a new-trial.

Reversed and remanded.

Opinion delivered January 24, 1883.