Martinez v. State

• Decision Date: 24 June 1891
• Citation: 16 S.W. 767
• Parties: MARTINEZ v. STATE.
• Court: Texas Court of Appeals

16 S.W. 767

MARTINEZ v. STATE.

Court of Appeals of Texas.

June 24, 1891.

On rehearing. Appeal from district court, Frio county.

West & McGowan, for appellant. R. H. Harrison, for the State.

DAVIDSON, J.

At a former day of this term the judgment in this cause was affirmed without a written opinion. There was a bill of exceptions in the record reserved to the charge, because it did not properly define "express malice aforethought" or "implied malice aforethought." Since the affirmance appellant filed a motion for rehearing, as follows, to-wit: "The court erred in not sustaining the defendant's bill of exceptions No. 1, * * * which bill complains of the error of the trial court in not charging upon and fully explaining to the jury malice aforethought;" and, in support of appellant's contention that the court ought to have explained to the jury malice aforethought, he submits the attached authorities. Washington v. State, 16 S. W. Rep. 653; Ainsworth v. State, Id. 652, (both decided at the present term of this court.) The two cases were decided the same day on which appellant's case was affirmed, and both of said cited cases reversed, among other reasons, because the trial court in his charge failed to explain malice. This question decided in the said two cases is not a novel proposition in this state, and was not prior to the two cases cited. Crook v. State, 27 Tex. App. 198, 11 S. W. Rep. 444; Childers v. State, (Tex.) 13 S. W. Rep. 650; Willson, Crim. St. § 1062; Richardson v. State, 28 Tex. App. 216, 12 S. W. Rep. 870. By reference to the bill of exceptions maintained in the motion for a rehearing, it will be seen that it was saved to the supposed error on the part of the trial court in failing to define "express" and "implied" malice. The charge thus defines "express malice:" "`Express malice' is where one, with a sedate and deliberate mind and formed design, unlawfully kills another, which formed design is evidenced by external circumstances discovering that inward intention, as laying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm, or any other circumstances showing such sedate and deliberate mind and formed design unlawfully to kill another, or to inflict serious bodily harm, which might probably end in the death of the person upon whom the same was inflicted. * * * `Implied malice' is that which the law infers or imputes to certain acts. Thus, when the fact of an unlawful killing is established, and there are no circumstances in evidence which tend to establish the existence of express malice, nor which tend to mitigate, excuse, or justify the act, then the law implies malice. * * *" These charges are precisely in the language contained in Willson's Crim. Forms, Nos. 710, 711, and which has been recognized as the correct rule for charging upon and defining the two phases of malice. Jordan v. State, 10 Tex. 479; McCoy v. State, 25 Tex. 33; Farrer v. State, 42 Tex. 271; Plasters' Case, 1 Tex. App. 673; Cox v. State, 5 Tex. App. 493; Sharpe v. State, 17 Tex. App. 486; Harris v. State, 8 Tex. App. 90; Douglass v. State, Id. 520; Neyland v. State, 13 Tex. App. 536; Reynolds v. State, 14 Tex. App. 427a; Turner v. State, 16 Tex. App. 378; Hubby v. State, 8 Tex. App. 597; and numerous other authorities. While the bill of exceptions is not reserved to any supposed defect of the charge in failing to define the terms "malice" or "malice aforethought," yet the question sought to be raised will be treated as if it was so reserved. By an examination of the charge, we find this language contained therein: "`Malice' is a condition of the mind which shows a heart regardless of duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken." This form of a definition is now and has been recognized as a correct one by the courts of last resort, as announcing a true rule by which to measure malice under our statute of murder. Another rule laid down, and equally correct, is thus defined: "Malice, in this legal sense, means the intentional doing of a wrongful act towards another, without legal justification or excuse." Sometimes one of these forms is employed in the charge, and sometimes the other, and some of our judges use both. It is wholly immaterial which is used, as they convey substantially the same idea. Judge CLARK, in a carefully considered opinion, in speaking of a proper definition of the term "malice," said that "a perfectly exact and satisfactory definition of that term, signifying its...