Van v. State

Hubt, Judge.

The indictment was for murder of the first degree, and the conviction for murder of the second degree.

The court in its charge to the jury used the following language : “Any rash and inconsiderate killing from some sudden impulse, without any sedate and deliberate mind, is upon implied malice, and is murder in the second degree.” In the paragraph preceding this*the jury were told that “implied malice is what the law implies from the mere act of a voluntary killing where the circumstances and facts upon one hand show no deliberate purpose to kill with a sedate and deliberate mind and formed design, nor, upon the other, are such as would reduce the offense to manslaughter or negligent homicide, or which excuse or justify the homicide.” The two quotations here made are the only instructions upon implied malice, or upon murder of the second degree»

Opinion delivered June 25, 1886.

These two paragraphs, taken together, are essentially the same as the instructions given in the case of Miles v. The State, 18 Texas Court of Appeals, 156, and which were held by this court to be radically incorrect in that part which is analogous to the paragraph we have first quoted. It was further held in that case that the remaining instruction, though correct, did not cure the error, and that the two, taken together, were calculated to mislead and confuse. We think the reasoning applied in that case applicable to the one we are now considering, and that decision conclusive of this appeal. (See also Neyland v. The State, 13 Texas Ct. App., 536.)

The conclusion reached obviates the necessity for passing upon the assignments of error calling in question the correctness of the rulings of the court in refusing a continuance, and in forming the jury. The judgment is reversed and the cause remanded.

Reversed and remanded.