Villa v. State, 15353.

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: Lattimore
• Citation: 53 S.W.2d 1023
• Parties: VILLA et al. v. STATE.
• Docket Number: No. 15353.,15353.
• Decision Date: 02 November 1932

53 S.W.2d 1023

VILLA et al. v. STATE.

No. 15353.

Court of Criminal Appeals of Texas.

November 2, 1932.

Appeal from District Court, De Witt County; J. P. Pool, Judge.

Manuel Villa, Sr., and Manuel Villa, Jr., were convicted of an assault to murder, and they appeal.

Reversed and remanded.

S. B. Carr, of Floresville, for appellants.

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

LATTIMORE, J.

Conviction for assault to murder; punishments, six and two years in the penitentiary respectively.

Appellants were jointly charged with making an assault upon one Gurkasch with their malice aforethought, and with intent to kill and murder him. The record shows that both appellants pleaded guilty. The court told the jury in his charge to find each of the defendants guilty as charged in the indictment and assess the punishment of each at confinement in the penitentiary for any number of years not less than two nor more than fifteen, as the jury might determine. The appellants were father and son, the son being a seventeen year old boy. The jury fixed the punishment of the father at six, and that of the son at two, years.

By an act which became effective April 17, 1931, which is chapter 61, Acts of the Regular Session of the 42d Legislature (Vernon's Ann. P. C. art. 1160, § 2), it is provided that upon the trial of any person for assault with intent to murder, the court, in its charge to the jury, shall define malice aforethought, and in a proper case murder without malice, and instruct the jury touching the application of the law to the facts. It is further provided in said act that if the jury find that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three years confinement in the penitentiary. In his charge to the jury in this case the learned trial judge failed to take any note of this change in the law of assault with intent to murder, and it becomes our duty to determine whether, even though no exception was taken to the failure of the court to give such charge, the failure is such as will demand of this court a reversal of the judgment.

In the case of Martin v. State, 36 Tex. Cr. R. 632, 36 S. W. 587, 38 S. W. 194, we held that a plea of guilty to murder does not embrace a confession of guilt of murder of the first degree. We further held in said case that the court should instruct the jury as to the elements of murder of the first degree, and, if necessary, murder of the second...