Swilley v. State , 114 Tex. Crim. 228 ( 1929 )

Conviction for murder; punishment, life imprisonment in the penitentiary.

This case is in a condition of much conflict, upon its facts, and in view of our disposition of the case we deem it not necessary to discuss the testimony.

The indictment charged that appellant did voluntarily kill H. J. Hendrix by shooting him with a gun. For the first time since the passage of Chap. 274, Acts Regular Session 1927, re-defining the offense of murder, — the point is made that while it is sufficient under said act for an indictment for murder to charge that the accused did voluntarily kill, etc., — that in cases wherein the State proposes to ask a punishment greater than five years for the offense, the indictment should allege that the killing was upon malice aforethought. The point here made was not raised or involved in the case of Crutchfield v. State, 110 Tex.Crim. Rep., but if there be anything in the opinion in that case, not in line with what is herein said, it will be overruled.

Mr. Bishop's New Criminal Procedure, 2d Ed., Chap. 6, states as follows: "The doctrine of this chapter is, that every wrongful fact, with each particular modification thereof, which, in law, is required to be taken into the account in determining the punishment upon a finding of guilty, must be alleged in the indictment." And again, id. "The indictment must allege every fact and modification of fact legally essential to the punishment to be inflicted." Discussing the offense of assault, Mr. Bishop, in this same connection, says: "An assault, — being punishable in a particular way, if a statute enhances the punishment when a specified fact attends it, the greater punishment cannot be awarded unless the indictment charges such aggravating fact." That what is thus said is approved in our State appears from the opinions in Garcia v. State, 19 Texas Crim. App. 389, and Crouch v. State,87 Tex. Crim. 115.

Our statute provides that robbery in this State shall be punishable by life imprisonment, or a term of years not less than five, but that when a firearm is used in the commission of the offense, the punishment may be death or imprisonment not less than five years. It is uniformly held that the higher punishment can not be inflicted unless the indictment specifically allege the matter made by statute the basis for the infliction of the higher penalty. Beaumont v. State, 1 Texas Crim. App. 536; Green v. State, 147 S.W. Rep. 593. In Jackson v. State, 33 Tex.Crim. Rep., we held that the court should not charge on robbery by the use of firearms or a deadly weapon if the indictment failed to allege such robbery. So also if it be desired to inflict a greater punishment by reason of a former conviction of the accused of like offenses, it has always been held that the indictment should plead the fact of such former conviction.

While our present statute makes murder of every voluntary killing, it is also specified in the statute that in every murder case the court shall tell the jury that unless the killing was upon malice aforethought, they can not assess the punishment at a period longer than five years; hence it is plain that murder without malice aforethought is punishable by imprisonment for not less than two nor more than five years, while murder upon malice aforethought may be punished by death or any period of imprisonment not less than two years. In other words, if the State wishes to seek a greater penalty than five years because of the presence of malice aforethought, — an indispensable element of the enhanced penalty under the new statute, — the indictment should allege that the killing was upon such malice aforethought.

There is in this record also serious complaint of argument of the district attorney, in its nature abusive, which will doubtless not occur upon another trial of this case. Attention has often been called to the fact that there is abundant room for legitimate discussion of the testimony and the law applicable, without indulging in personal abuse of the man who is at the bar of justice. We always regret the necessity of admonishing district attorneys in this regard, and of calling the attention of trial courts to the duty that devolves upon them primarily of seeing that fair limits of argument are not transgressed.

The judgment will be reversed and the cause remanded, and the attention of the State is called to the fact that if upon another trial it purposes to ask for the enhanced penalty against this defendant, a new indictment will be necessary.

The judgment is reversed and the cause remanded.

Reversed and remanded.

ON STATE'S MOTION FOR REHEARING.