Swilley v. State , 114 Tex. Crim. 228 ( 1929 )

The soundness of the conclusion stated in the original opinion, namely, that in a trial for murder where a penalty of more than five years' confinement in the penitentiary is sought it is essential that the indictment charge that the accused acted with malice aforethought, is assailed. In interpreting the new murder statute embraced in Chapter 274, Acts of the 40th Legislature, Regular Session, it is, of course, the duty of this court to give effect to the legislative intent if it can be ascertained from the words employed in writing the statute. To the mind of the writer, it occurs that in enacting subdivision 3-a of the act, the Legislature regarded the terms in which the offense of murder was defined as embracing "malice aforethought" and that in directing that the court should define malice aforethought, and apply that term in appropriate charge to the facts in the particular case, it was not implied that malice aforethought was not a part of the offense of murder as defined, but was rather to make it plain that it was a part of the law of murder as defined and that the jury was to be so instructed in an appropriate charge; that is, one not prescribed by the Legislature but left to the sound discretion of the trial court to apply the term "malice aforethought" to the particular facts arising in the case on trial. That in the use of the language in the statute in which the offense is defined, the meaning is the same as though the words "malice aforethought" were used in the definition is, we think, illustrated by numerous decisions of this court and of the Supreme Court of this state during the period of time when it took cognizance of criminal cases. No authentic definition of the term "malice aforethought" has ever been adopted by the Legislature or by the courts of this state.

Malice aforethought has been defined as the voluntary and intentional doing of an unlawful act by one of sound memory and discretion, with the purpose, means and ability to accomplish the reasonable and probable consequence of the act; and includes all of those states of mind under which the intentional killing of a person takes place without any cause which will, in law, justify, excuse or extenuate the homicide.

Using different words but embracing the same idea the courts of this state have defined malice aforethought in their instructions to the jury. Having in mind the definition above mentioned and the fact that there is in this state no standard, by statute or otherwise, for the interpretation of the words used in the statute and no specific direction therein that "malice aforethought" shall be in the indictment, it would seem that an indictment in the terms of the statute would sufficiently charge the offense of murder for all purposes. It is a general rule that an indictment phrased in the language of the statute denouncing an offense will support a conviction for the offense.

Prior to June 15, 1927, the offense of murder in this state was defined thus:

"Whoever with malice aforethought shall kill any person within this State shall be guilty of murder. Murder is distinguishable from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide." (Art. 1256, P. C., 1925.)

On June 15, 1927, there became effective an enactment of the 40th Legislature changing the definition of the offense of murder. The act is embraced in Chap. 274, Acts of the 40th Legislature. In Section 3 of the Act conflicting laws were repealed. The law of manslaughter was also repealed and murder defined thus:

"Whoever shall voluntarily kill any person within this state shall be guilty of murder. Murder shall be distinguished from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or which excuse or justify the killing."

The article further states:

"The punishment for murder shall be death or confinement in the penitentiary for life, or for any term of years not less than two."

In Article 1257-a it is declared in substance that upon the trial all relevant facts and circumstances surrounding the killing and the previous relations of the parties, and all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide shall be received in evidence and may be considered by the jury in determining the punishment to be assessed.

In Sec. 3, Chap. 274, supra, it is declared that the law of manslaughter" and all other laws in conflict herewith are hereby repealed."

Section 3-a reads as follows:

"In all cases tried under the provisions of this Act, it shall be the duty of the Court to define 'malice aforethought' and shall apply that term by appropriate charge to the facts in the case and shall instruct the jury that unless from the facts and circumstances in evidence the jury believes the defendant was prompted and acted with his malice aforethought, they cannot assess the punishment at a period longer than five years."

Under the old statute the form of indictment for murder was prescribed by the Legislature as follows:

"A B did, with malice aforethought, kill C D by shooting him with a gun." (C. C. P., Art. 409.)

In the present instance the charging part of the indictment reads thus:

". . . did then and there unlawfully and voluntarily kill and murder H. J. Hendrix, by then and there shooting him with a gun."

It seems manifest that murder, as defined in the present law, embraced the idea of malice aforethought as it was understood at the time the act was passed. If it were not so, malice aforethought could not become a substantive part of the offense by embracing it in the indictment. Both the Bill of Rights and the statute, as interpreted, require that all penal offenses be in writing. See Art. 3, P. C., 1925; Art. 1, Sec. 10, Const. of Texas. Without doing violence to this fundamental principle which pervades our criminal law, malice aforethought could not be made a part of the offense by embracing it in the indictment, but could become so only by virtue of the fact that it was included in the definition of the offense. The first subdivision of Article 1256, supra, apparently denounces as murder every form of culpable homicide other than thosespecifically excepted in the statute. It, therefore, necessarily embraces a culpable homicide prompted by any formof malice including malice aforethought. Malice aforethought denotes the state of mind of the slayer immediately preceding the unlawful act which results in the death of his adversary. Premeditation is an essential element of malice aforethought. Art. 1256, supra, as embraced in the new statute defining murder, includes all voluntary culpable homicides, but everyvoluntary culpable homicide is not necessarily upon maliceaforethought. In adjusting the penalty that may be assessed under the new statute defining murder, note is taken of the principle above stated, namely, that a homicide may be intentional, neither justified nor excused, and yet not prompted by malice aforethought. It is clear that an indictment charging in the language of the statute (Art. 1256, P. C.) the offense of murder is in no sense a void indictment. In such an indictment one is charged with murder, which is distinguishable from every other species ofhomicide by the absence of circumstances which reduce theoffense to negligent homicide or which excuse or justify thekilling. The language last quoted is equivalent to the definition of malice aforethought as found in the dictionary and in many of the reported cases in our own and other jurisdictions. See Webster's New International Dictionary, page 1305; Words Phrases, 3d Series, Vol. 4, p. 1060; Cyc. of Law Proc., Vol. 21, p. 706; Stevens v. State, 42 Tex.Crim. R.; Cain v. State, 42 Tex.Crim. R..

The indictment in the present case contains the language of the statute and more, namely, that the accused "did then and there unlawfully and voluntarily kill and murder H. J. Hendrix by then and there shooting him with a gun." It is challenged alone upon the ground that there is an absence of the words "with malice aforethought." There is an exception to the rule holding an indictment sufficient if in the language of the statute. The exception, however, pertains to instances in which greater particularity is required either from the obvious intention of the Legislature or from the application of known principles of law. The cases applying the exception, in the main, were decided at a time when criticisms of the court's rulings were available when first made on motion for new trial, — a rule which is no longer in force. In some of them it appears affirmatively that the action on appeal was in response to motions to quash the indictment. In none of them does it appear that complaint was made of the defect for the first time on appeal.

If it be a fact that the term "voluntary killing," as used in the statute, may include a killing with malice aforethought orwithout malice aforethought, an indictment couched in the language of the statute might be indefinite to a degree, but it obviously embraced both phases of the offense of murder named in the statute. Apparently, therefore, the indictment, if faulty, comes within the class which, when attacked in limine, may be quashed for absence of certainty; that is, in the class in which upon attack would require that an indictment be drawn to contain words in addition to those set forth in the statute. Without an attack in limine, however, the contrary rule would prevail, that is, an indictment embracing in general terms both phases of the offense would support a conviction of either.

It seems clear that if the statute is valid, the indictment following the language of the statute would be invulnerable except upon attack before entering the plea. That the indictment is indefinite would carry with it the conclusion that the statute was indefinite. In other words, if it is contended that the language of the statute embraced in an indictment does not charge both phases of the offense of murder, then the statute does not do so. It must be conceded that by reason of the novelty of the statute and the manner in which it is drawn its interpretation is extremely difficult. That its validity, however, is not an open question has, upon full consideration by the decisions of this court, been repeatedly upheld. In the case of Davis v. State,10 S.W.2d 118, it is said:

"We are further of the opinion that his attack upon the law, as being indefinite, vague, uncertain, ambiguous, and unintelligible, cannot be sustained."

The validity of the statute was specifically declared by the court in Mercer's case, 13 S.W.2d 689 (see p. 691). In numerous cases, by affirmances of convictions for murder under the new statute, it has, without discussion, at least been inferentially treated as valid. Among these are Lawrence v. State, 18 S.W.2d 181. Illustrative of the fact that the sufficiency of an indictment in the language of the present statute is one upon which trained minds may differ is the experience of this court in the instant case and in others in which it has expressed itself by way of dicta as regarding valid an indictment which was in the language of the statute and still others in which convictions for murder have been sustained where the indictment was in the same language as that under consideration in the present appeal. See Crutchfield v. State, 10 S.W.2d 120; Mercer v. State, supra; and Lopez v. State, 17 S.W.2d 807, in which the judgments were sustained. To these matters reference is made to illustrate the fact that the precedents furnish no exact criterion for the interpretation of the law with which we are now dealing. In construing the statute the court is placed in a situation rendering it necessary, without authentic guide, to act upon its own judgment. No measure is at hand by which the correctness of the decision reached in interpreting the statute can be demonstrated. The language of the statute, as above pointed out, having been judicially determined sufficient to embrace both phases of the offense of murder, it would seem inevitably to follow that the indictment in the language of the statute would likewise embrace both phases of the offense. If it be granted that (as has heretofore been indicated by this court in the opinion on motion for rehearing in Crutchfield's case, supra), in drawing the indictment it would be better to include the words "malice aforethought," or if it be contended that without such words there would be a lack of certainty in the indictment, leaving the accused without sufficient information as to whether the State would seek the higher penalty prescribed by the statute, the omission, in the opinion of the writer, would not be of a fundamental nature. Under the assumed conditions stated above, advantage of the omission would not be available to the accused unless, before pleading, he made a motion to quash the indictment for uncertainty. In our system of practice it is fundamental that one accused of crime may not speculate upon the result but must promptly assert his right to the observance of the rules of procedure or by his silence waive it.

In its charge the court embraced the definition of murder contained in the statute. It also charged the law of malice aforethought and charged the jury that if the offense was prompted by malice aforethought, the penalty might be any term not less than two years or death. These instructions were given without opposition upon the part of the appellant, and without any objection reserved to the charge of the court upon the grounds mentioned. An analysis of the position in which the appellant stood is that the court is in error, but if the trial results in my favor I will be content; if the verdict is against me, the error that the court has committed and of which I am making no objection will redound to my benefit in securing a new trial or a reversal. It is against such result that the procedure statutes are directed, — particularly that in which it is declared, "all objections to the charge and to the refusal or modification of special charges shall be made at the time of the trial. Art. 666, C. C. P. Articles 658, 659 and 660, require that before the charge is read to the jury it shall be submitted to the appellant or his counsel for examination. Under these articles of the statute, it is incumbent upon the court, after writing his charge, before it is read to the jury and before argument, to submit it to counsel for the accused for examination. It is the duty of counsel for the accused, upon examination of the charge, to advise the trial court of any objections to the charge because of defects, either affirmative or negative, which may appear to him and to bring forward on appeal in writing exceptions to the refusal of the court to make corrections, and upon so doing the charge will be reviewed on appeal. Otherwise it will not be reviewed unless it contains faults of a fundamental nature which cannot be waived.

In view of the opinion of this court upon the original hearing and in contemplation of another trial, the writer has deemed it proper to express his views touching the indictment. There is in the record, however, a bystanders' bill of exception properly prepared and authenticated by the affidavits of three citizens in which the following appears:

"Be it remembered that upon the trial of the above entitled and numbered cause, the District Attorney in his closing argument to the jury, while pointing his finger at the defendant, said: 'This man committed a crime in this county forty years ago and has been living that kind of a life ever since, and as soon as the people of Liberty County get rid of him the better and safer place it will be to live. There is in that physical wreck of a man a vile and vicious disposition and a heart that is black plumb through.' "

There are no controverting affidavits. The bill recites that the argument was supported by no evidence introduced upon the trial; that the character or the reputation of the accused was not put in issue; that the remarks were dehors the record. The appellant did not testify as a witness. In our examination of the statement of facts, we have been unable to perceive any evidence which would warrant the argument. In a bill prepared by the court it is stated that a part of the argument was not made. The statute permitting a bystanders' bill (Art. 2237, Revised Civil Statutes, 1925, subdivision 9), reads as follows:

"Should the party be dissatisfied with said bill filed by the judge, he may, upon procuring the signatures of three respectable bystanders, citizens of this State, attesting to the correctness of the bill as presented by him, have the same filed as part of the record of the cause; and the truth of the matter in reference thereto may be controverted and maintained by affidavits, not exceeding five in number on each side, to be filed with the papers of the cause, within ten days after the filing of said bill and to be considered as part of the record relating thereto."

Commenting upon a like situation, Judge Davidson, in writing the opinion of this court reversing a judgment assessing the death penalty solely upon the ground that an inflammatory argument dehors the record had been made, declared that in the absence of controverting affidavits filed in accord with the statutory provisions quoted, a bystanders' bill imports verity. See Hemphill v. State, 72 Tex.Crim. R.; Pye v. State,71 Tex. Crim. 94; Marshall v. State, 76 Tex.Crim. R.. In the state of the record, this court is bound to treat the bystanders' bill as speaking the truth. That the argument was calculated to inflame the minds of the jury and transcended legitimate argument is without question. It is obviously harmful and of a nature to require a reversal of the conviction assessing against the accused a penalty of imprisonment for life.

For the reasons stated, the State's motion for rehearing should be overruled.