King v. State , 117 Tex. Crim. 43 ( 1931 )

Conviction for assault to murder; punishment, eight years in the penitentiary.

Complaint is made in bill of exception No. 6 of the refusal of a special charge, in substance, that a conviction for assault to murder could not be had unless the jury believed the assault was made with malice. This again raises the question as to whether malice or malice aforethought is an element necessary to prove or submit in the charge in trials for assault to murder. We say again, — because the same question was raised in Tucker's case, 115 Tex.Crim. Rep., 26 S.W.2d 638, — that malice is no longer a part of the offense of assault to murder in this State. We have again considered the matter, but without changing our views.

The offense of assault to murder, defined in article 1160, P. C., is there stated as follows: "If any person shall assault another with intent to murder, he shall be confined in the penitentiary not less than two nor more than fifteen years."

The only additional light derived from statute on what is assault to murder in this State, is what is said in article 1165, P.C., that an assault with intent to commit any other offense is constituted by the existence of the facts which bring the offense within the definition of assault, coupled with an intention to commit such other offense, as * * * murder, etc. What facts, if proved, would constitute murder as now defined? The necessary answer is in the language of article 1256, P. C., as amended by the Acts of the 40th Legislature, Regular Session, Chap. 274: "Whoever shall voluntarily kill any person within this State shall be guilty of murder." Testimony establishing an assault, if sufficient to show that there was on the part of the accused in the making of such assault a specific intent to kill, would seem to measure up to the proof necessary in ordinary cases of assault to murder. In certain classes of cases proof of such specific intent is not necessary. Whiteside v. State, 115 Tex.Crim. Rep.,29 S.W.2d 403.

Malice is not now an essential element of the offense of murder, but a charge on malice aforethought is by statute (chapter 274, section 3a, as amended by Act 40th Leg., 1st Called Session, chap. 8, sec. 1) made obligatory in murder prosecutions in order that the jury may know how to fix the punishment in accordance with the provisions of Chap. 274, supra. Crutchfield v. State, 110 Tex.Crim. Rep., 10 S.W.2d 119; Harris v. State, 111 Tex.Crim. Rep., 12 S.W.2d 211. Stated in different form — a jury may now convict for murder in a case in which the killing is without malice. If this court should hold that upon the trial of one charged with assault to murder, it would now be necessary to prove malice, and to submit the question of malice to the jury in the charge, we would, in effect, be holding aside from and beyond any statutory direction; and this would be judicial legislation, the effect of which would be to keep in force, in so far as the law of assault to murder is concerned, a definition of murder which no longer exists on our statute books. We do not think ourselves authorized to so overrun the statute.

It is true that prior to the enactment of Chap. 274, supra, murder was necessarily a killing upon malice, or under circumstances deemed equivalent, and we therefore held it necessary to prove malice, and submit in the charge the issue of malice in cases of assault to murder — but the purposed omission of malice from murder in the definition thereof in said Chap. 274, supra, seems to compel a different rule regarding the charge of the court and the proof in assault to murder cases now.

There has been no re-enactment of the law of assault to murder since the passage of said chapter 274, supra, hence no application can be here made of the well-known rule of construction that legislative re-enactment of a law without change in its verbiage is regarded as a legislative adoption of prior judicial interpretations of said law. We would seriously question the application of such rule of construction in any case where the statute involved be one whose very existence and definition are dependent on the existence and definition of another written law. If the law of murder be repealed, our present law of assault to murder would necessarily fall to the ground for lack of measuring up to the requirement that no act can be enforced except it be definitely framed and so construed as that it can be understood from its own language, or that ofsome other written law of the State — as laid down in article 6, P. C.

Our attention is called to the opinion in Small v. State,116 Tex. Crim. 411, 32 S.W.2d 862, in which the indictment for assault to murder charged that such assault was "Will malice aforethought." In the original opinion, as understood by this writer, said indictment was discussed as if said quoted words were omitted entirely from the indictment, and the conclusion was reached that since the new murder statute was enacted by the 40th Legislature, — as was the law before that, — an indictment for assault to murder was sufficient which omitted the words "With malice aforethought." The cases referred to, cited and discussed in said original opinion, were all decided prior to the enactment of said new murder statute, and no announcement was made in said opinion with reference to what is necessary now in the matter of proof or charge of the court, upon the trials of assault to murder cases.

In the motion for rehearing in said Small case, supra, we were criticised for not discussing the force and effect of the use in the indictment of the words "Will malice aforethought," and that point was practically the only one in the mind of this writer when he wrote on said rehearing. After deciding that the use of the word "will" in said indictment was clearly intended to be the word "with", we said in substance that the words "With malice aforethought" was a sort of formula, etc., etc., settled in practice as a necessary element in * * * assault to murder cases. The authorities cited in the original opinion were before us as well as those cited in appellant's motion, and we did not intend to hold that malice aforethought is now a necessary element in assault to murder cases, nor that it is necessary to use the expression in an indictment for assault to murder, or to define or submit said words upon the trial of an assault to murder case where the indictment omits said expression, nor to require that the jury believe and find upon the proof that such assault was with malice aforethought.

We find nothing in any of the other bills of exception. Bill No. 2 was taken to the court's action in allowing the prosecuting witness, upon the request of the State's attorney, to show the scar made by the cut on his breast. Nothing in said bill shows that this exhibition served no useful purpose. The statement in said bill that seeing this scar was calculated to influence the minds of the jury against appellant, might be literally true, even when the exhibition of said scar had much weight on some material issue. The statement, as ground of objection, that the demonstration was immaterial, was not certified to be correct. Bill No. 3 sets out no surrounding facts from which we might learn that the matter asked about in the question objected to, was not material. Bill No. 4 presents a proposition of law which is not sound, and bill No. 5 was taken to the refusal of a special instruction which does not appear to fit any testimony in the case.

No error appearing, the judgment will be affirmed.

Affirmed.

Morrow, P. J., dissents.