Washington v. State , 25 Tex. Ct. App. 387 ( 1888 )

White, Presiding Judge.

In the indictment it was-charged that the murder of Mary Miller by this appellant was committed with express malice aforethought and in perpetration of the crime of rape. These allegations were most abundantly and conclusively sustained by the evidence adduced on the trial. There can be no reasonable doubt of the fact, in the light of the evidence, consisting in part of two separate confessions, made after he was warned, by defendant himself, of his guilt, and the horrible and sickening details of his atrocious crime.

There are no bills of exception in the record; no objection was made to the charge of the court when delivered to the jury, and no additional instructions were asked for the defendant. The charge was full, correct and sufficient, in so far as it presented the law applicable to a murder committed with express malice aforethought.

In the motion for a new trial it was for the first time objected to the charge that it failed and omitted to instruct the jury also upon the law with reference to a murder committed in the perpetration of rape. To entitle a party to a new trial for supposed errors in the charge, it must be made to appear that the court “has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.” (Code Crim. Proc., art. 777, subdiv. 2; Bishop v. The State, 43 Texas, 390; Leache v. The State, 22 Texas Ct. App., 280, where the later decisions are cited; Jackson v. The State, Id., 442; Williams v. The State, 24 Texas Ct. App., 17.) In this case there was no apparent misdirection in so far as the charge goes, and it only remains to inquire whether the omission or failure to instruct upon the law with reference to murder when committed in the perpetration of rape, has injured the rights of this appellant? How such a result could be possible under the facts of this case we can not imagine.

To constitute murder of the first degree there must be “malice aforethought,” “express malice,” and when this malice aforethought is evidenced by the fact that crime was committed in the perpetration of rape, then there can be no question of degrees in such murder; it is ipso facto murder of the first degree, and made so by the statute. (Penal Code, art. 606.) But a murder committed in the perpetration of rape or any of the other enumerated felonies in article 606 is none the less a murder upon malice aforethought, and where one of these modes is named in the indictment, whilst it may be essential to prove it as charged, the proof when made is but evidence of the malice aforethought which is the controlling constituent element of the crime. .(Tooney v. The State, 5 Texas Ct. App., 163; Roach v. The State, 8 Texas Ct. App., 478; Sharpe v. The State, 17 Texas Ct. App., 486; Gonzales v. The State, 19 Texas Ct. App., 384; State v. Schnelle, 24 West Virginia, 767; Newcombe v. The State, 37 Mississippi, 383.)

Opinion delivered May 2, 1888.

As stated heretofore, there was no exception to the charge as given, and no additional instructions were asked, and we can not see how the defendant could have been injured by the court’s simply limiting the finding of the jury to a murder committed upon express malice. The facts showing both express-malice and a murder also in the perpetration of rape, the failure to charge upon the latter, instead of being an injury to defendant, if it could have had any effect at all, it appears to us, could only have been favorable to the defendant. We do not think the omission, complained of for the first time upon the motion for a new trial, shows under the circumstances of this case such error as requires a reversal of the judgment. This is-the only question of any moment presented upon the record on this appeal.

Two confessions made by appellant show him to be guilty of one of the most atrocious murders ever perpetrated in this or any other civilized country, and when the sickening details are considered, we can but admire the fortitude and forbearance of the community where it occurred in permitting the law to vindicate itself in his punishment with its own extreme penalty.

The judgment is affirmed.

Affirmed.