Guajardo v. State

Conviction for murder; punishment, death.

Appellant filed a motion to quash the indictment in this case, making the contention that it did not follow the law. We think the indictment herein sufficiently charges murder under our present law. It is identical with the one upheld in Crutchfield v. State, 10 S.W. Rep. 2d 119.

Certain exceptions were taken to the charge of the court, each of which has been analyzed and we believe none of same to possess merit. Another bill of exceptions was taken to the overruling of the motion for new trial, but since same only brought before the court errors of procedure during the trial, and contained no matter of supposed error otherwise, the bill brings nothing for review.

In his brief appellant's counsel urges fundamental error on the ground that the charge does not properly define malice aforethought, and does not apply the law of malice aforethought to the facts. We have carefully examined all of the charges and are of the opinion that paragraph six of same does properly and sufficiently define malice aforethought, and that paragraph eight pointedly tells the jury that if they find and believe from the evidence beyond a reasonable doubt that the appellant killed the deceased, and that such killing was upon malice aforethought, as that term had been defined, they should find him guilty of murder and assess the penalty at death, or confinement in the penitentiary for any period of years not less than two. In the same paragraph the jury are further told that if they find and believe appellant killed deceased, not in self-defense, but do not further find that the killing was upon malice aforethought, as defined in this charge, they should find him guilty and fix his penalty at not less than two nor more than five years. This we believe to be a proper application of the law to the facts of this case, and if there be anything wrong with the definition of malice aforethought we are unable to detect the error. We are not disposed to agree with learned counsel for appellant that it should be first determined by the jury whether the killing was upon sudden passion arising from an adequate cause, and that the jury should be given a charge so stating, and instructing them that if they found the homicide to have been so committed, they should find the accused guilty of murder without malice aforethought. Such charge would but inject an added issue into this case, and all such cases. We now have for determination under appropriate definition and instructions but the single issue as to whether the killing was upon malice aforethought, — yes or no, — and if yes, then the heavier penalty; if no, then the lighter. If we followed the suggestion of counsel, we would shift back to the ground long familiar, i. e., was there cause, and if so, was it adequate, and if so did it in fact produce passion, and if so was it such as would lead a person of ordinary temper, under the same or similar circumstances, to kill? We do not believe such to be the intention of the present law. The fewer the issues, the less the likelihood of confusion and error. Malice aforethought is a term well understood and defined, and of comparatively easy comprehension. When, as is the command of our new murder statute, all evidences pertinent to the relations of the parties, their mental states and the issues involved, is before the jury, we do not think the court could single out any fact or set of facts and say to the jury that these mitigate, reduce or extenuate. Dunne v. State,98 Tex. Crim. 7, 263 S.W. Rep. 608.

We find little aid in the decisions rendered under the old law referring to extenuation or mitigation. The present statute sweeps these aside, makes all unlawful killing above the grade of negligent homicide, murder, and then runs through murder a well defined line or penalty marker, on the one side of which is all murder with malice aforethought, and on the other all murder without such malice. Manslaughter is no longer a defense against murder, nor are its constituents to be given in charge to the jury. Appellant has all his rights of self-defense unimpaired. His justification, if any, is in nowise rejected or limited. We appreciate the reasoning in appellant's brief, and have tried to analyze the authorities cited, but do not believe any error appears in the matters discussed.

We think it unnecessary to discuss the facts at any great length. For four years appellant had worked for and with the deceased, who had been good to him, according to appellant's own testimony. On the morning of the killing a difficulty arose and, according to the State's testimony, deceased struck appellant with his hand, defending against an attack or threatened attack from appellant with a wrench. Appellant went to his own house, washed, got a hat, put a pistol in his clothes, returned, worked a while, and at a time when, according to the wife of deceased, the latter was stooping over some part of a cultivator, appellant shot him. He seems to have emptied the pistol. Four bullet wounds, two of which would have been necessarily fatal, were in the body of the deceased. Appellant claimed self-defense, and that deceased threw a wrench at him, and believing his life in danger, he shot and killed the latter. Appellant got in the car of deceased immediately following the homicide and drove the same to Austin where he was arrested in it. The issues of fact were for the jury and they have solved them against appellant.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.