King v. State

DISSENTING OPINION. The offense is assault with intent to murder; penalty, confinement in the penitentiary for eight years.

Earl Daniels was stabbed by the appellant. A pocket knife was used, the blade of which was about two and one-half inches long. The knife entered the breast of Daniels near the fourth rib. The blade was broken from the knife and afterwards taken out by a physician. The evidence sufficiently shows that the knife used was a deadly weapon. Daniels hit the appellant over the head with an automobile pump. The evidence is conflicting as to whether the appellant or Daniels was the aggressor. Daniels' testimony was to the effect that he was assaulted by the appellant without previous notice. According to Daniels, after he was stabbed, he went to the automobile and got a pump from the back seat. After hitting the appellant with the pump, Daniels noticed that he was stabbed and was taken at once to a sanitarium. Touching the beginning or the cause of the difficulty Daniels said: "One nigger did step on my foot just as I got out of the car." Daniels said that he ran against him but did not know that a negro boy had stepped on his foot.

Bill No. 2 recites that Daniels, in his direct examination, testified that he was cut by the appellant with a knife, and while on the stand exhibited the wound to the jury. In the bill the wound is described as "a ragged cut on the left breast making a jagged and ugly scar." Nothing has been observed in the bill showing that the appearance of the scar was produced by anything save the cut. Nor is there in the bill any averment that the appearance of the wound did not tend to solve some controverted issue. In the case of Mahaney v. State,95 Tex. Crim. 443, 254 S.W. 946, the case of Chapman v. State, 66 Tex.Crim. Rep., 147 S.W. 580, and Graves v. State, 58 Tex.Crim. Rep., 142 S.W. 676, and others are reviewed, and the conclusion of the court is stated in the following language: "The law does not interdict the exhibition of wounds but limits their receipt to occasions when they tend to solve some controverted issue. * * * It being permissible under some circumstances to exhibit wounds to the jury, it was incumbent upon the appellant in the instant case to show, by bill of exception, the conditions which render them inadmissible. The bill, in our opinion, is not of that character." Mahaney v. State, 95 Tex.Crim. Rep.,254 S.W. 946, 948. See also Leal v. State, 112 Tex. Crim. 479,17 S.W.2d 1064; Trigg v. State, 99 Tex. Crim. 376,269 S.W. 782.

The definition of assault with intent to murder has never been changed. The statute defining it was passed before the adoption of the present Constitution, and the courts, then and since, have declared that an indictment charging an assault with intent to murder was sufficient although it omitted an averment that the act was committed with malice or malice aforethought. In the law making malice aforethought an essential element of the offense of murder, the court considered that an averment that the assault was made with intent to murder was a sufficient compliance with the law touching an indictment for assault with intent to murder. See Martin v. State, 40 Tex.Crim. Rep.; Mills v. State, 13 Texas Crim. App., 487, and other precedents cited in the recent case of Small v. State, 116 Tex.Crim. Rep.,32 S.W.2d 860. The re-enactment of a statute without change of its verbiage is regarded by all courts as a legislative adoption of the judicial interpretation. See Lewis' Sutherland Statutory Construction, 2nd Ed., Vol. 2, p. 758, sec. 399; also Lewis v. State, 58 Tex.Crim. Rep., 127 S.W. 808; Williams v. State, 88 Tex.Crim. Rep.; 225 S.W. 177; Francis v. State, 90 Tex.Crim. Rep.; 233 S.W. 974; Gunn v. State, 95 Tex.Crim. Rep., 252 S.W. 172; Munoz v. State, 103 Tex.Crim. Rep., 281 S.W. 857. It has been uniformly held that in the trial the proof must show that the assault was made with "malice aforethought" and the jury must be told that unless it was so made, there could be no conviction for assault with intent to murder. From the opinion of Judge White, in the early case of Hodges v. State, 3 Texas Crim. App., 472, we quote: "It follows, as has been repeatedly decided, that neither in a charge given by a court in a case of murder nor of assault with intent to murder can it be said that the charge presents 'the law applicable to the case,' which fails to define or instruct the jury as to the meaning of the term 'malice'."

In the opinion of the court written by Presiding Judge Davidson in the case of Thurogood v. State, 87 Tex. Crim. 209,220 S.W. 337, 338, it is said: "If appellant was not actuated by malice aforethought he could not be guilty of assault with intent to murder."

The same announcement has been made and applied in many cases. Among them are Daniels v. State, 4 Texas Crim. App., 429; Carruthers v. State, 13 Tex.Crim. Rep.; Davis v. State, 96 Tex.Crim. Rep., 259 S.W. 946. Any assumption that the Act of the Fortieth Legislature changing the definition of murder operated to amend or change the statute defining an assault with intent to murder is a mistaken one. Statutes are at times repealed by implication. It is a rare case that a statute is amended by implication. See Lewis' Sutherland Statutory Construction (2nd Ed.), vol. 1, sec. 239.

In the Constitution of Texas, article 3, sec. 36, it is said: "No law shall be revived or amended by reference to its title; but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length."

In the case of Tucker v. State, 115 Tex.Crim. Rep.,26 S.W.2d 638, there is an intimation that the new murder statute (Chap. 274, Acts of 40th Leg. (1927), Reg. Sess.) would deprive the accused in a case of assault with intent to murder of the right to have malice aforethought defined and applied. The statement is in line with Crutch-field's case,110 Tex. Crim. 420, 10 S.W.2d 119, in which it was declared that an averment of malice aforethought was unnecessary in charging the new murder statute amending article 1256, P.C. On reflection the court reached the contrary conclusion which is expressed in Swilley's case, 114 Tex.Crim. Rep., 25 S.W.2d 1098. Tucker's case, supra, was reversed on rehearing because the facts failed to exhibit the offense of assault with intent to murder. Our investigation of the subject leaves us clearly of the opinion that to warrant a conviction for assault with intent to murder, there must be proof that the accused was actuated by malice aforethought and that an appropriate instruction to that effect should be given to the jury by the trial court. This is in accord with the unbroken line of precedents, many of which have been cited about. Others will be found in Michie's Texas Digest of Criminal Cases, vol. 3, p. 600; Branch's Crim. Law, secs. 518-519, pp. 339-341.

An indictment for assault with intent to murder embraces the lower grades of assault which, in a proper case, would demand appropriate instruction enabling the jury to differentiate between the higher and the lower grades of the offense. On this subject there are many precedents. See Wilson v. State, 4 Texas Crim. App., 637; also Marshall v. State, 40 Tex. Crim. 200.

From what has been said it follows that in the opinion of the writer the judgment should be reversed and the cause remanded.