Lee v. State ( 1935 )

In his motion for rehearing appellant insists that the trial court committed fundamental error in his instructions on murder without malice. The part of the charge criticized is that paragraph applying the law of murder without malice from the State's standpoint. In the very next paragraph the jury was instructed that if they had a reasonable doubt whether the killing was done with malice the doubt must be resolved in appellant's favor, and the punishment should not be for more than five years. No fundamental error appears.

It is again insisted that fundamental error was committed by the trial court in that it is claimed that the law of murder without malice was not sufficiently applied to the facts. Appellant relies on Privett v. State, 57 S.W.2d 1102; Youngblood v. State, 50 S.W.2d 315; Butler v. State, 51 S.W.2d 384. In the case of Smith v. State, 61 S.W.2d 835, the authorities mentioned were reviewed, and the Butler case not followed in the respect here involved. The charge given in Smith's case was practically the same found in the present case, and was sustained even over objection.

In a further review of the record we find nothing upon which a reversal may be properly predicated.

The motion for rehearing is overruled.

Overruled.