Moody v. State

WHITE, Presiding Judge.

This is an appeal from a judgment of conviction for an assault with intent to murder.

The charge of the court, while it properly defines “express” and “implied” malice, fails to define “malice aforethought.” The rule is well settled, that a charge of the court in a trial for murder, or an assault with intent to murder, which omits to define “malice” or “malice aforethought,” the essential elements of these crimes, is erroneous, and such error is not cured by the definitions of “express” or “implied” malice. Crook v. The State, 27 Texas Ct. App., 200; Boyd v. The State, 28 Texas Ct. App., 137; Callahan v. The State, ante, p. 275, and authorities therein cited.

Another fatal error in the charge of the court is as to the penalty for aggravated assault and battery. The court instructed the jury that the penalty was a fine of “not less than $25 nor more than $1000, or at imprisonment in the county jail at any time you see proper, not less than one month nor more than two years.” As far as it goes, the charge is correct as to the penalty, but our statute goes further, and provides that there may be ‘‘ both such fine and imprisonment. ’ ’ Penal Code, art. 498; Graham v. The State, 29 Texas Ct. App., 31. For these errors in the charge of the court, the judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.