Hall v. State

26 S.W. 72, 33 Tex. Crim. 191, 1894 Tex. Crim. App. LEXIS 77

Opinion

DAVIDSON, Judge.

Appellant’s punishment was assessed at death, under a conviction of murder in the first degree. He failed to reserve exceptions to any rulings of the court had upon the trial.

1. In his motion for new trial it is contended by appellant the court erred in instructing the jury, that “the mind need not be absolutely calm, unruffled, or self-possessed.” This is an excerpt from a sentence included in the court’s definition of malice. Taken in connection with the remainder of the charge, it is in strict conformity with the law as it has previously been understood and announced in this State. Farrer v. The State, 42 Texas, 271; Duebbe v. The State, 1 Texas Crim. App., 159. The proposition announced by the court is correct. The definitions of malice aforethought, as well as of express and implied malice, are in strict conformity with law and unobjectionable.

2. The allegation of newly discovered testimony, contained in the motion for a new trial, is totally unsupported by the affidavit of the defendant, his counsel, or the witness by whom the facts were expected to be shown. In fact, if the evidence is true it tended to strengthen the theory of express malice, and its probative force was to show malice and motive for the killing.

The evidence clearly proves a murder upon express malice.

No error being disclosed, the judgment is affirmed.

Affirmed.

Judges all present and concurring.