Stevens v. State

I agree to the result reached. While the definition given by the court of "malice" is subject to some criticism, I believe an analysis of the same shows it embodies a substantial definition. Ordinarily defined, "malice is the intentional doing of a wrongful act without just cause or excuse, and denotes a heart totally devoid of social duty and fatally bent on mischief." From the definition given by the court, we gather that malice is the intentional doing of an act injurious to another, in willful disregard of the rights of that other, and exists where one does a cruel act to another without legal excuse, justification, or extenuation. This embraces the essential elements as suggested in some of the definitions given. "Malice" and "malice aforethought" are treated by some of the authors as convertible terms, meaning in effect the same thing, though Mr. Bishop says "malice aforethought" is applicable alone to murder, and has an intenser signification than mere "malice." The definition of "express malice" in the charge is as follows: "Where murder is committed with a sedate and deliberate mind, and in pursuance of a previously formed design, it is murder upon express malice." Here the word "unlawful" is omitted, and the word "murder" is used. By going back in the court's charge to a previous definition of murder, it will be found that it is stated to be an unlawful killing, etc.; and so, by bringing this definition forward, we make out the definition of a killing upon express malice. It is a matter of regret, in as important a case as this, and especially where malice is so well defined in the authorities, that we should be under the necessity of construing the charge in order to determine whether or not the substantial elements of malice were given and defined by the court. It is believed, however, that the charge is sufficient. Harris v. State, 8 Texas Crim. App., 9; Martinez v. State, 30 Texas Crim. App., 129; Crook v. State, 27 Texas Crim. App., 198; Harrell v. State,39 Tex. Crim. 204.

[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]