Babb v. State

12 Tex. Ct. App. 491

Opinion

Willson, J.

The defendant was convicted of murder in the second degree and his punishment assessed at confinement in the penitentiary for fifty years. The court below in its charge' to the jury entirely omitted to instruct the jury as to the meaning of malice.

There can be no murder without malice, and in all trials for murder, and assaults with intent to commit murder, the court in its charge must define and explain the term malice. This rule has been established by the repeated ' decisions of the Supreme Court of this State, and by this . court, and has in no single instance been departed from or disregarded. (Villareal v. State, 26 Texas, 107; Anderson v. State, 1 Texas Ct. App. 730; Smith v. State, Id. 516; Williams v. State, 3 Texas Ct. App. 317; Hodges v. State, Id. 472; Jones v. State, 5 Texas Ct. App. 397.)

The court also erred in instructing the jury that they might find the defendant guilty of manslaughter, without- also instructing them as to what state of facts would constitute that offense.

Reversed and remanded.