Gossett v. State , 114 Tex. Crim. 324 ( 1929 )

In addition to the matter discussed in the original opinion, we find another error which demands a reversal. Appellant properly and timely excepted to the charge of the court for its failure to apply the law to the facts. The first paragraph gives the statutory definition of murder. The second paragraph defines the term "voluntary." The third paragraph gives the distinguishing features of the crime, and the fourth paragraph sets out the punishment. Thereafter malice aforethought is defined. The eighth paragraph explains the difference between murder committed with malice aforethought and without malice aforethought, prefacing the same with the statement that if the jury find the defendant guilty of murder as thereinbefore defined then that the instructions contained in said paragraph are to be considered in determining the punishment. Nowhere in the charge is there an application of the law to the facts, except on the issue of self-defense. Nowhere is the jury directed as to what facts they must find to be true before a conviction could result. See Edwards v. State, 259 S.W. 578, and authorities collated.

The motion for rehearing is overruled.

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.