Joubert v. State

• Decision Date: 07 December 1938
• Docket Number: No. 19949.,19949.
• Citation: 124 S.W.2d 368
• Parties: JOUBERT v. STATE.
• Court: Texas Court of Criminal Appeals

Page 368

124 S.W.2d 368

JOUBERT v. STATE.

No. 19949.

Court of Criminal Appeals of Texas.

December 7, 1938.

Rehearing Denied February 8, 1939.

Appeal from Criminal District Court, Jefferson County; Robt. A. Shivers, Judge.

A. Joubert was convicted of murder with malice, and he appeals.

Judgment affirmed.

Quentin Keith, of Port Arthur, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

The appellant has been heretofore tried and convicted of murder without malice, and was given a penalty of three years—see 133 Tex.Cr.R. 405, 111 S.W.2d 721—which judgment was reversed. He is again before us on appeal from a conviction of murder with malice, and a penalty of eight years. For a statement of the facts we refer to the former opinion herein.

Appellant had filed and presented to the trial court a plea of former acquittal of the offense of murder with malice based upon the proposition that he having been formerly convicted of murder without malice, such was tantamount to an acquittal of murder with malice. Under the prior murder law in this State when such offense was composed of different degrees, such was the law as is contended by appellant, but is now no longer the law as was plainly said in the case of Parks v. State, 131 Tex.Cr.R. 464, 99 S.W.2d 943, 945, by Judge Hawkins on motion for rehearing:

"The State in its motion for rehearing expresses apprehension that the effect of our original opinion is to again read into the present murder statutes degrees of murder, thereby recognizing two offenses. We disclaim any such intention. Our expressions heretofore support such disclaimer. See Herrera v. State, 117 Tex.Cr.R. 389, 36 S.W.(2d) 515; Hunt v. State, 123 Tex.Cr.R. 559, 59 S.W.(2d) 836; Chappell v. State, 124 Tex.Cr.R. 187, 61 S.W. (2d) 842."

"The contention that the new murder statute, article 1257c, created two offenses—one of murder and one of murder without malice—has been rejected in a number of opinions of this court," citing cases. Stephens v. State, 125 Tex.Cr.R. 397, 68 S.W.2d 181, 187.

Appellant's bill of exceptions No. 2 is a complaint on account of the failure of the court to define the word "voluntarily" as contained in the indictment, and he cites as an authority sustaining the proposition that such a definition should have been given, the case of Crutchfield v. State, 110 Tex.Cr.R. 420, 10 S.W.2d 119. We do find therein a statement upholding the proposition laid down by appellant; however, such a statement was not called for in a proper disposition of the case, and is dicta. The present murder statute had been enacted just prior to the handing down of such opinion, and the learned judge who wrote the opinion in the Crutchfield Case, supra, was endeavoring to chart a course to be thereafter followed in the trial of murder cases in this State, and allowed this dicta to come into his opinion in order to simplify such procedure. We have not followed such portion of that opinion since that time. In fact it is also said and recognized as dicta in the opinion on motion for rehearing in that case, but later again enunciated, that the phrase "with malice aforethought" set forth in an indictment for murder carried with it the word "voluntarily". That it was not necessary to allege that such killing was "voluntarily" done, when there was included in such indictment the allegation that such killing was done "with malice aforethought".

We quote from Taylor v. State, 133 Tex. Cr.R. 56, 106 S.W.2d 681, 682:

"Another attack upon the indictment is because it omits to allege that appellant `voluntarily' killed deceased, the criticism being based on the fact that our present definition of murder is `Whoever shall voluntarily kill any person within this State shall be guilty of murder.' Art. 1256, P. C. (as amended by Acts 1927, c. 274, § 1 [Vernon's Ann.P.C. art. 1256]).

"It was held in Crutchfield v. State, 110 Tex.Cr.R. 420, 10 S.W.(2d) 119, that an averment that the killing was done `with malice aforethought' was sufficient. See, also, Landers v. State, 114 Tex.Cr.R. 352, 25 S.W.(2d) 868; House v. State, 128 Tex.Cr.R. 404, 81 S.W.(2d) 708. It will be noted that the present indictment alleges that the killing was upon malice aforethought."

If an allegation in the indictment of a killing upon malice include a charge as being voluntary, which we have consistently held, then a definition of malice aforethought should carry with it a definition of the voluntariness of the act. The word "voluntary" is a word in common use, its meaning clear and well understood by the ordinary person, and not of such an involved, complicated or special meaning as to require a defining thereof to the jury. Where terms used are words simple in themselves, and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms, and under such circumstances such common words are not necessarily to be defined in the charge to the jury.

We have also heretofore held in the case of Swilley v. State, 114 Tex.Cr.R. 228, 25 S.W.2d 1098, 1100, that a killing may be a voluntary killing prompted by malice, or may not be thus prompted, as is evidenced by the passage of Arts. 1257b and 1257c, but we also recognize the doctrine that a killing with malice aforethought must of necessity be a voluntary killing.

We quote therefrom: "By the foregoing clause [Art. 1257b] the legislature clearly recognized that, while all killings actuated by malice aforethought were voluntary, a killing might be voluntary with malice aforethought absent."

We do not think the court erred in its failure to include in its charge a definition of the word "voluntarily".

Appellant's bill of exception No. 3 complains of the fact that although the trial court charged the jury on murder with malice, murder without malice, aggravated assault and simple assault, nevertheless the court should have specifically, independently and affirmatively charged upon the specific intent to kill. This idea being based upon an assault with a hoe, which was not per se a deadly weapon. We note that the trial court in its charge on malice aforethought defined the same as the voluntary and intentional doing of an unlawful act, etc. We also find in the charge, in paragraph charging murder without malice, if the jury believed that the appellant's mind was affected by certain emotions as laid down in the statute, Art. 1257c, "he struck the deceased not in self-defense, but with the intent to kill, then you will find him guilty of murder without malice," etc.

We also find the following special charge which was given by the careful trial judge to the jury: "Gentlemen of the Jury: You are instructed that the hoe introduced in evidence by the State is not a deadly weapon per se, that is the law does not consider said hoe a deadly weapon in itself. You are further instructed that the law does not presume that the defendant intended to kill the deceased from the means used, that is the use of the hoe. You are charged, therefore, that before you can convict the defendant of any offense other than assault and battery, that you must first find and believe from the evidence beyond a reasonable doubt that the defendant, at the time and place in question, and at the very time the blow was struck then and there entertained the specific intent to kill T. A. Cheshire, and if you do not so believe beyond a reasonable doubt, or if you have a reasonable doubt, then you will give the defendant the benefit of such doubt and acquit him of murder, but may consider whether or not he is guilty of aggregated...