Adams v. State , 147 Tex. Crim. 571 ( 1944 )

Appellant insists that the facts are insufficient as a matter of law to show a killing upon malice aforethought, and that we erred in reaching a contrary conclusion. He relies upon the cases of Ely v. State, 139 Tex.Crim. R., 141 S.W.2d 626, and Parks v. State, 131 Tex.Crim. R., 99 S.W.2d 943, as supporting his contention.

In the Ely case, the killing occurred as a result of, and in connection with, an illegal arrest. No such situation is presented in the instant case. In the Parks case, the killing occurred only after the accused "had been knocked down twice and was again being attacked by the deceased at the time the shots were fired. Appellant had made no effort to draw his pistol until deceased attacked him the third time." No such facts exist in this case. The Ely and Parks cases are deemed neither applicable nor controlling here.

In the instant case, State's witnesses testified that, immediately before appellant began the fatal attack, he was heard to say, in effect, that the reason deceased did not agree with him in his contention that the car was parked wrong was because he (appellant) had a "black face." This, together with the other facts and circumstances, warranted the jury's conclusion that the killing was upon malice aforethought.

It must be remembered that malice may be formed immediately before an act is committed and can arise instantly. McClellan v. State, 118 Tex.Crim. R., 40 S.W.2d 87; Williams v. State, 90 Tex.Crim. R., 235 S.W. 594.

We remain convinced that the facts authorized the jury's conclusion that appellant killed deceased with malice aforethought.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.