McGrath v. State , 35 Tex. Crim. 413 ( 1896 )

This case comes before us on a motion for rehearing. Appellant contends that, in order to define murder of the second degree, upon implied malice, it was the duty of the court to define manslaughter; and to support this contention he cites us to Whitaker v. State, 12 Tex.Crim. App., 436. We have examined the opinion in said case, and it appears that the court rendering it entertained the view that manslaughter should be defined in connection with the charge on implied malice, in order to give a proper definition of implied malice. In that case, the court gave a charge on negligent homicide, but the opinion does not show whether or not charges were submitted on manslaughter and self-defense. If they were, the opinion in said case was clearly erroneous. See Childs v. State, post p. 573. If, however, the principle of the decision in the Whitaker case is right, then, in order to adequately define murder of the second degree, upon implied malice, it necessarily follows that the court should also define excusable homicide and self-defense, as well as manslaughter, in order that the charge on implied malice may be properly understood. We do not think this contention can be sustained. As we understand it, murder of the second degree is a homicide upon malice, and the intent to kill upon malice is formed in a mind excited by passion. This passion, however, is not engendered upon adequate cause, as in manslaughter; nor has manslaughter the ingredient of malice, as in murder of the second degree. Now, when the court tells the jury, in order for there to be a killing upon malice, there must be, on the one hand, a killing upon malice aforethought, but the malice must not be express; and, on the other, that there must be no circumstances to reduce the killing to manslaughter, or to excuse or to justify the act, the court has given the boundaries of the offense. It is true, the definition is of a negative character; but, so far, it is the only definition of the offense given in our Reports. When such a charge is given, if there is nothing in the facts of the case calling for charges on lower grades of homicide or justifiable homicide, why charge the jury on those subjects? The charge above given is equivalent to instructing the jury that there is no element of said lower grades of homicide or justifiable homicide in the case. It is tantamount to telling them that, if there was malice in the offense, and they find it was formed, not in a sedate and deliberate mind, but in one disturbed by passion, there are no facts in the case constituting adequate cause for such passion, and that, in such event, they must find the killing upon implied malice. It does not occur to us that it is necessary, in a case where no grade of felonious homicide is submitted lower than murder in the second degree, for the court, in order to give a charge upon implied malice, that it should, after indicating that, if there was any evidence tending to show that the killing was under circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide, and then go further, and, in connection with the charge on implied malice, to define the offense of manslaughter, negligent homicide, and the circumstances which excuse or justify the act. We do not deem it necessary to discuss the other matters set out in the motion for rehearing. The motion is overruled.

Motion Overruled.