Wallace v. State , 7 Tex. Ct. App. 570 ( 1880 )

Clark, J.

If the defendant, with a sedate and deliberate mind, anterior or subsequent to the act of parturition conceived the design to take the life of her new-born infant, and in pursuance of such formed design did take its life in the manner alleged in the indictment, and such infant was wholly produced from the body of its mother alive, and was in existence by actual birth at the time the injuries causing death were inflicted, then she would be guilty of murder with express malice. If, however, the design to take its life was formed and executed when her mind, by reason of physical or mental anguish, was incapable of cool reflection, and she was not sufficiently self-possessed to consider and contemplate the consequences about to be done, but, yielding to a sudden, rash impulse, she conceived and perpetrated the fatal deed after the infant had been wholly produced from her body and had an existence by actual birth, then she was guilty of murder in the second degree.

We cannot say that the charge of the learned judge who presided on the trial below submitted these issues with that accuracy which usually characterizes his instructions ; nor do we feel an assurance that the jury may not have been misled by the general terms employed in defining the ingredients especially of murder in the second degree. Abstractly considered, the definition may not be inaccurate in ordinary cases, but in this case the better practice would have been to have submitted that issue substantially as above indicated. In this particular case, it is not well conceived how any legal provocation, excuse, or justification could arise, if the defendant strangled her own child after birth ; and the instruction was practically tantamount to an announcement that the defendant was guilty of murder in the second degree if she voluntarily and intentionally killed the child by the manner and means alleged.

We are also of opinion that the charge is materially defective in another respect. The issue of strangulation before birth was not submitted to the jury. It is true that among other definitions the jury were told that “in order that a child be in existence Icy actual birth, the parturition must be complete, and the body of the child must be expelled from the mother, and it must be alive ; so that the destruction of vitality in a child before it is completely born is not murder, under whatever circumstances committed.” But after applying the law to the particular case with reference to murder in the two degrees, it was incumbent upon the court to do likewise with reference to that phase of the evidence which might tend to the exoneration of the defendant. Presented in the form of an abstract proposition, it was not brought to the attention of the jury with that distinctness which the law demands. If they believed from the evidence that the defendant took the life of the deceased, by the means and in the manner alleged, yet the same was done before the child was completely born, "or if they believed from the evidence that the means used, and which resulted in death, were merely for the purpose of assisting delivery, in either event they should acquit.

. The instructions asked on circumstantial evidence should also have been given. Harrison v. The State, 6 Texas Ct. App. 42; Hunt v. The State, ante, p. 212.

The judgment is reversed and the cause remanded. Reversed and remanded.