Before the original opinion by Judge Harper was handed down December 17, 1913, we fully and more than once considered in consultation this case and the questions therein. At that time Judge Davidson dissented, but did not then prepare any dissenting opinion. Promptly thereafter appellant made a motion for rehearing, and the case again was held in consultation for some time. On January 14, 1914, the motion for rehearing was overruled without any written opinion. At once after the motion for rehearing was overruled by the court, Judge Davidson filed his dissenting opinion. Neither Judge Harper nor myself had seen or knew of his dissenting opinion until after it was filed. Under the circumstances I file this concurring opinion, — so that, together with the original opinion of Judge Harper, it will be part of the opinion of this court.
In order to discuss the question fairly, I state what it is, how it is raised and how decided.
Our murder statute in force when this offense was committed and tried and which is the law of this case, is: "Article 1140, Penal Code, (old). Every person with a sound memory and discretion who shall unlawfully kill any reasonable creature in being within this State with malice aforethought, either express or implied, shall be deemed guilty of murder. Murder is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide."
Article 1141 is: "All murder committed . . . with express malice . . . is murder in the first degree; and all murder not of the first degree is murder of the second degree."
Under all our decisions murder with implied malice is murder in the second, and can not be murder in the first degree.
The indictment alleges that appellant on April 7, 1913, "did unlawfully, with malice aforethought, kill L.T. Ammann by then and there shooting him with a pistol." This indictment under all the forms and under the statute and decisions of this State, in its face, expressly charges murder in the first degree andnothing else. It does not expressly charge murder in the second degree, nor manslaughter, nor negligent homicide in either degree, nor any other unlawful homicide or offense. These latter offenses, under the statute (C.C.P., arts. 771-2 [751-2]) as Judge Hurt said, "are charged by inclusion," and not otherwise. (McGee v. State, 39 Tex.Crim. Rep..) No law writer or judge of this or any other Appellate Court in this State, has ever held otherwise in any case, unless it be Judge Moore in the Buster case hereinafter discussed. *Page 429 The other offenses are merely embraced by it "by inclusion" only, by virtue of the express provisions of the statute, and not otherwise. The statute (C.C.P., art. 771 [751]): "Where a prosecution is for an offense consisting of different degrees, the jury may find the defendant not guilty of the higher degree (naming it) but guilty of any degree inferior to that charged inthe indictment." And (art. 772 [752]): "The following offenses include different degrees: 1. Murder which includes all the lesser degrees of culpable homicide."
Murder in the second degree, manslaughter and negligent homicide in either degree, are separate and distinct offenses from murder in the first degree, — expressly made so by our statutes and so held by every appellate judge in this State in every case where the question has been raised and decided. All text-book writers lay down as forms for indictments for each of these homicides under murder in the first degree, a different and distinct form from that of murder in the first degree.
Further. The charge of the court, in this case, submits to the jury for a finding, only and solely, murder in the first degree. It does not submit murder in the second degree, nor manslaughter nor negligent homicide in either degree, nor any other offense that might be "by inclusion" embraced in the said indictment. On the contrary, the record affirmatively shows that the trial judge refused expressly to submit murder in the second degree, or any other offense, than murder in the first degree. Nor did the court in his charge, either directly or indirectly, refer to murder in the second degree, or any other offense, — solely and onlymurder in the first degree. So far as the jury was concerned, in this case, they never heard of any such offense as murder in thesecond degree or any other character of unlawful homicide, or any other character of offense, other than solely that of murder in the first degree. In submitting ony murder in the first degree, the court expressly required the jury to believe beyond a reasonable doubt that the appellant "with express maliceaforethought with a pistol, being a deadly weapon, or instrument well calculated to produce death by the manner in which it was used, with a sedate and deliberate mind and formed design to kill, did unlawfully shoot with a pistol and thereby kill said L.T. Ammann, you will find him guilty of murder in the first degree and so state in your verdict, affixing the penalty therefor." Then told them that the punishment for this offense is death, or confinement in the penitentiary for life, as the jury may determine and state in their verdict. The charge did not tell the jury what the penalty or punishment was for any other offense.
The verdict is: "We, the jury, find the defendant guilty ascharged in the indictment and assess his punishment at confinement in the State penitentiary for life." Under the law and the facts and circumstances of this case, there can be no shadow of doubt that by this verdict the jury found the appellant guilty of murder in the "first degree," and of nothing else. And there can be no shadow of doubt or uncertainty that this verdict so finds. As much so and with as absolute certainty *Page 430 as if they had, in the face of the verdict, included the words "first degree" one time, or a hundred times.
It is true that the statute (P.C., art. 1142) expressly requires, "if the jury shall find any person guilty of murder they shall also find by their verdict, whether it is of the first or second degree."
Our law commands: "The provisions of this Code shall beliberally construed so as to attain the objects intended by the Legislature; the prevention, suppression and punishment of crime." (C.C.P., art. 25.) It also commands: "This Code, andevery other law upon the subject of crime which may be enactedshall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects." (P.C., art. 9.) It also declares, the Code seeks, "to exclude the offender from all hope of escape, and the certain execution of the sentence of the law when declared." (C.C.P., art. 1.) Even in an indictment the language of which is, at least, as important and as necessary as that of a verdict, our law says: "Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include thesense of the statutory words." (C.C.P., art. 475.)
Then, under the law, how is said article 1142 to be understood and construed? So that a verdict in a murder case is void — absolutely so — unless it contains the words, "first degree" or "second degree," as the case may be? Most assuredly not. The words "first degree," in this statute, have no talismanic force or effect. Any other words which have the same certain meaning are of equal force and power and find the "first degree" with as absolute certainty as these two words themselves could do. It is as true in law as in mathematics, that "things which are equal to the same thing, are equal to each other." "Twelve months" is precisely the same thing as "one year." Mitchell v. State, 2 Texas Crim. App., 404.
As shown above, the indictment charged expressly, murder in thefirst degree, and murder in no other degree, nor any other character of unlawful homicide. The charge of the court submitted to the jury for a finding, only and solely murder in the firstdegree and expressly refused to submit murder in the seconddegree, or any other unlawful homicide. The jury expressly said in response to this indictment and charge of the court, we find the defendant guilty "as charged in the indictment" and they did not find him guilty otherwise. Besides, they assessed his punishment at confinement in the penitentiary for life, which is the punishment which could be assessed only for murder in the first degree, and could not be inflicted for murder in the second degree, nor for any other unlawful homicide. So that, as stated above, there can be no shadow of doubt or uncertainty, that the jury in this case found the defendant guilty of murder in thefirst degree, and that only, and of no other offense or grade of offense. Every reasonable person would absolutely know, from all this, that this verdict found appellant guilty of murder *Page 431 in the first degree, and solely that; and what every other person knows, the judges of this court must know, and can not be ignorant of, or uncertain about.
Judge Davidson contends in his dissenting opinion that this verdict is absolutely void because it did not have the words "first degree" therein. And proceeds to cite may cases, beginning back with the case of Slaughter v. State, 24 Tex. 410, written by Judge Roberts, and follows that with the case of Buster v. State, 42 Tex. 315, written by Judge Moore; then cites other cases. As I understand, his opinion is based, and the other cases he cited are also based, upon these two decisions, written by these illustrious and great judges, and the statute. I heartily concur in his eulogy of each of these judges. When rightly considered, and in connection with the facts shown by the respective cases in which these two opinions were written, they are not in conflict with the opinion and holding in this case. For lack of time and because unnecessary, I can not take up, state and discuss the other decisions cited by Judge Davidson, which he says follow these two opinions, nor show that none of them are in material conflict with the decision in this case. Most of them certainly are not; possibly some of them may be; but if so they are clearly wrong and should not be followed. But I will take up, state, discuss and show what these two opinions decide and under what circumstances they were written.
In the Slaughter case it is shown, without doubt and without question, that murder in the second degree and manslaughter, and perhaps negligent homicide in one or the other, or both degrees, were clearly raised by the evidence; and that murder in the second degree and manslaughter, at least, as well as murder in the first degree, were submitted by the court to the jury for a finding. The jury found this verdict: "We, the jury, find the defendant guilty and assess the punishment at confinement in the State penitentiary for the term of twelve months." Under the facts and circumstances of that case the court correctly held that from that verdict it could not be told of what offense the jury found the defendant guilty. Certainly, by no express statement in it, did they find appellant guilty of either murder in the first degree, murder in the second degree or manslaughter. The lower court, as the opinion says, construed that verdict to be for manslaughter, by considering the facts in proof and the charge of the court, as well as by the punishment assessed — the punishment applying to manslaughter only and to none of the other offenses submitted. Judge Roberts in the opinion, in substance and in effect, on this point, held that it could not be told with certainty of what offense that verdict found the defendant guilty. There is no question of the correctness of that holding.That case is not this case, nor anything like it. The indictment in that case was for murder in the first degree. Judge Roberts expressly states in that opinion: "A general verdict of guilty onsuch an indictment under such a rule would be a finding of thedefendant guilty of murder, the highest degree charged." (Italics mine). The holding in this case is *Page 432 in exact accordance with what Judge Roberts said just quoted above, with the additional facts in this, which were not in that, that murder in the first degree only and solely was charged by the indictment, submitted to the jury for a finding by the court in his charge and responded to expressly by the jury in their finding.
But Judge Roberts also, in that opinion, held that the charge of the court was no part of the record and could not be looked to in order to render certain what the jury meant by their finding. In this holding he was clearly and without doubt in error. While, as stated above, I heartily concur in Judge Davidson's eulogy of Judges Roberts and Moore, they, like all other men, whether great or small, high or low, were not infallible. Infallibility attaches to no human being, and never did, and never will. Infallibility is an attribute of Deity only. In holding that the charge of the court was not a part of the record and could not be looked to for the purpose of ascertaining what the jury meant by its verdict, Judge Roberts has been overruled uniformly and by a great many decisions of this court; and on principle, as well as authority, he was in error in that holding.
In felony cases our statute imperatively requires that charges shall be given in writing. This is always done. I know of no case where a charge other than in writing was ever given in a felony case. The jury not only are permitted, but universally take this written charge with them in their retirement in consideration of their verdict. It is essential that they should do so. When no documentary evidence is introduced, the charge and the indictment are the only papers in a criminal cause that the jury do take with them. It would be impracticable, if not impossible, for the jury to give proper consideration to the case, unless they did take with them the written charge of the court. It is their guide, and only guide, in directing them what they must do and what they must not do, with reference to the particular case under consideration. So far as that case is concerned they know no law except what is told them by the court in this written charge. They can not know it otherwise. So that necessarily theverdict must be considered in connection with the charge. Even more so than in connection with the indictment itself.
On this subject this court in Marshall v. State, 4 Texas Crim. App., 553, said: "We can look to the charge of the court in construing the verdict. The charge is a part of the record in the cause. It is in writing, and is handed to the jury on their retirement. To it they necessarily look in considering their verdict. In our practice the essential idea of a charge is that it is authoritative as an exposition of the law, which the jury, under their oaths, are bound to obey. Chester v. The State, 1 Texas Crim. App., 702; Patterson v. Allen, 50 Tex. 23."
In Hutto v. State, 7 Texas Crim. App., 44, this court, through Judge White, said: "A remaining ground urged in the motion in arrest is that the verdict of the jury does not find the defendant guilty of `theft of cattle,' but guilty of `theft' only. The position is not well taken; *Page 433 the verdict is not only certain, but in every respect responsive to the issue before the jury. Were there any doubt in the premises, this case would come within the rule announced in Marshall v. State, 4 Texas Crim. App., 549, viz., that `the charge to the jury may be looked to for the purpose of ascertaining the offense of which their verdict in such a case convicts the accused.'"
In Nettles v. State, 5 Texas Crim. App., 386, this court, through Judge White, again said: "This court has more than once held that where there was a general verdict of guilty, imposing punishment for a lesser degree than that charged in the indictment, it would be sustained if upheld by reference to theissues made and submitted by the charge of the court to thejury."
I can not undertake to cite even a moderate number of the cases decided by this court to the same effect, but I will cite one or two others. I will come down to a later date. In Styles v. State, 37 Tex.Crim. Rep., this court, through Judge Davidson, said: "Appellant was charged with and convicted of an aggravated assault, and fined $ 25; hence this appeal. It is contended that the verdict is vague, indefinite, uncertain, and not sufficiently specific to support the judgment based upon it. It reads as follows: `We, the jury, find the defendant guilty as in the indictment,' etc.; the weakness in said verdict being found in the fact that the word `charged' is omitted between the words `as' and `in.' There is nothing in this contention. The verdict is sufficiently specific, and clearly exhibits the intent of the jury. It is also contended that the verdict is insufficient, inasmuch as it does not sufficiently specify the grade of assault of which it is intended to find defendant guilty, because the charge of aggravated assault embodies within it a charge of simple assault, and the conviction may have been for the smaller offense. We think this alleged error is without merit. The chargeof the court submits only the offense of aggravated assault. Theissue of simple assault was not before the jury. They were notauthorized to pass upon it, and were not charged with referenceto it. Under this state of case, the verdict is sufficiently specific and certain, and is responsive to the charge and the testimony." To precisely the same effect is Millard v. State, 59 S.W. Rep., 273, in an opinion written by Judge Davidson. See also Vincent v. State, 10 Texas Crim. App., 330; Foster v. State, 21 Texas Crim. App., 80. It would be a useless consumption of time to collate the many cases to the same effect, wherein opinions to this effect have been written by each and every member of this court from its foundation down to the present time. This court almost daily acts on cases where this principle is in force and is applied.
I will now discuss the Buster case, supra. It is bottomed on said Slaughter case. There is no full report of the facts, nor questions raised, or submitted in the charge of the court, but it is perfectly clear from the opinion itself that murder in the second degree, as well as in the first degree, was raised in that case and the court submitted a charge *Page 434 to the jury thereon, for Judge Moore, in starting the opinion, says: "The court was not required, by the facts of this case, to instruct the jury on the law applicable to homicide below the grade of murder. The charge given by the court, as it seems to us upon a general consideration of it, presented the distinction between murder in the first and murder in the second degree correctly, and with such reasonable clearness and applicability to the evidence as the necessities of the case required." The jury in that case found this verdict: "We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment to be hung by the neck until dead." As stated above, Judge Moore on the authority of the Slaughter case, and the statute, held that this verdict was too uncertain to predicate a judgment upon it. His argument and reasoning indicates clearly, that because murder in the first, and murder in the second, degree, both were submitted for a finding, that he could not tell of which degree they found defendant guilty. And he said in effect, that he could not tell whether they made a mistake as to the degree or penalty for, he said, to support the judgment, the court must be able to see from the verdict that it authorized and required a penalty fixed by law, or the penalty assessed by the jury is warranted by law, and "that the jury are not mistaken in the character or degree of the offense of which they have in fact found defendant guilty and imposed a penalty not fixed by law." Again, he said: "The only hypothesis upon which, with the least degree of plausibility, we can look to the penalty assessed by the jury, to determine the degree of guilt found by the verdict of `guilty' is, that the jury could not have mistaken the law through ignorance or wantonness, and could not have been deceived or misled through prejudice or passion." In answering the argument that the jury found the defendant guilty, "as charged in the indictment" and that as the indictment expressly charged murder in the first degree, and, therefore, the verdict found him guilty of murder in the first degree, he said: "To this it is sufficient to answer, that indictments in the usual form charge murder in the first degree as well as in the second." In this he was clearly in error. As we have shown above, an indictment for murder in the second degree, under our statute, as laid down by all authors on forms, does not charge murder in the first degree, but charges only murder in the second degree, — an entirely separate and distinct and lower offense. But I might concede that the decision in the Buster case is correct, and yet, that case is not this case. In that, murder in the first and second degree,both was raised and both submitted. In this, the evidence without doubt raised only, murder in the first degree, murder in thefirst degree only was charged in the indictment, alone submitted in the charge of the court, and the verdict of the jury found him "guilty as charged," which is murder in the first degree and that alone, and assessed a punishment that was for that offense and that alone, and could not have been assessed for murder in the second degree, nor for any other lower grade of unlawful homicide.
But, again, Judge Davidson, in his dissenting opinion, says: "Even *Page 435 Judge Prendergast, as late as the 62 Tex.Crim. Rep., in Burton v. State, recognized the correctness of the cases of Slaughter and Buster, and gave them the sanction of his approval. In the Burton case Judge Prendergast also referred, approvingly, to the case of McCloud v. State, 37 Tex.Crim. Rep.." It is true that I did refer in the Burton case to these cases, but I distinctly distinguished those cases from the Burton case, stating: "Each of these cases were murder cases in which the court submitted the various offenses in some, or all of them, of murder in the first and second degree, manslaughter, etc., wherein the verdicts in those particular cases were held insufficient because the jury did not designate which grade of the offense they found the defendant guilty of." Again, in the same case, I said:
"It is now the well established doctrine of this court, and is clearly the law applicable to the construction of verdicts, that they are to have a reasonable intendment and construction, and are not to be avoided, unless from necessity originating from doubt of their import or immateriality of the issue found. Walker v. State, 13 Texas Crim. App., 618; McMillan v. State, 7 Texas Crim. App., 100; Bland v. State, 4 Texas Crim. App., 15; Williams v. State, 5 Texas Crim. App., 226; Partain v. State, 22 Texas Crim. App., 100. And that in construing a verdict the object is to arrive at the meaning of the jury. Chester v. State, 1 Texas Crim. App., 702. Technical and unsubstantial objections to a verdict will not be considered in determining its sufficiency. Reynolds v. State, 17 Texas Crim. App., 413, and cases cited above.
"Therefore, both on reason and authority, we hold that the verdict in this case is not uncertain, but clearly finds the defendant guilty of theft of property over the value of fifty dollars. McGee v. State, 39 Tex.Crim. Rep.; Vincent v. State, 10 Texas Crim. App., 330; Cohea v. State, 11 Texas Crim. App., 153." The verdict and opinion in the Burton case are, in principle, practically the same as this case.
Again, Judge Davidson calls attention to the fact that the opinion in the McCloud case was written by Judge Hurt. Judge Davidson says: "In that opinion Judge Hurt gave the sanction of his wonderful judicial mind to the correctness of the opinion in the Buster case." I think Judge Davidson is mistaken in this. Judge Hurt merely followed, without giving "the sanction of his wonderful judicial mind" to the Buster case. If he did, he later radically changed his mind upon a fuller and more deliberate consideration thereof, for in McGee v. State, 39 Tex. Crim. 190, he "gave the sanction of his wonderful judicial mind" to the reverse of the Buster case, and was aided and had the sanction of the other two eminent members of this court at that time, — Judge Davidson and Henderson. In the McGee case, through the mouthpiece of Judge Hurt, he and Judges Davidson and Henderson, said:
"Appellants were charged with rape upon Martha Green. The jury returned the following verdicts: `We, the jury, find the defendant, Prada McGee, "guity" as charged in the indictment, and assess his punishment at confindment in the State Penitenitory for a tearm of fifty *Page 436 years. T.A. Smith, Foreman.' And: `We, the jury, find the defendant, Maryland Fuller, "guity" as charged in the indictment, and assess his punishment at confidment in the State pentenitory for a term of fifty years. T.A. Smith, Foreman.' The courtsubmitted to the jury rape and assault to rape. The punishment for assault to rape is confinement in the penitentiary for any term not less than two years; the punishment for rape is death, or confinement in the penitentiary for life, or any term of years not less than five. Fifty years confinement in the penitentiary is a legal punishment for either offense. Rape includes an assault with intent to commit rape. Now, the contention of appellant is that the above verdicts are insufficient to support the judgments; that, as fifty years may be the punishment for an assault to rape, and as rape and assault to rape were submitted to the jury, the verdicts should have stated for which offense the defendants were convicted. This proposition is absolutely correct. But the question is whether the verdicts fail to sostate. Article 751, Code Criminal Procedure, provides: `Where a prosecution is for an offense consisting of different degrees, the jury may find the defendant not guilty of the higher degree, naming it, but guilty of any degree inferior to that charged in the indictment or information.' The question is not before us as to whether the jury convicted the defendant of a lesser degree than that charged. The question is whether the jury convicted theparties of the degree charged in the indictment in this case. What was the higher degree charged in the indictment? Evidently it was not an assault with intent to rape, but was rape. Now, how do the verdicts read? `We, the jury, find the defendant "guity"as charged in the indictment.' The charge in the indictment wasfor rape. Assault with intent to rape was charged in one sense,which was by inclusion. It evidently was not charged directly, for, if so, article 751 could never have any practical operation. This article expressly provides that the accused can be convicted of an inferior degree to that charged in the indictment. Now, if this inferior degree was not charged in the indictment, either directly or by inclusion, the parties could not be convicted legally at all, because a conviction can not be legal without allegations. This article settles the question. It draws the distinction clearly between the charged degree, — that degreewhich is set forth in the indictment and that degree of offensewhich is charged by inclusion. If assault to rape was charged in the indictment, within the meaning of this article, so was aggravated assault and simple assault, and so was an attempt to rape. If, then, these degrees were all charged, within the meaning of this article, to give the article practical effect the accused could be convicted of some offense not charged at all. To restate: We understand article 751 to draw a distinction between the degree which is charged directly and affirmatively in theindictment and the lesser degrees of the same offense, which arecharged by inclusion. This article says that in substance by stating: `But guilty of any degree inferior to that charged in the indictment or information.' Now, the verdicts in *Page 437 this case find the defendants guilty as `charged in theindictment'; and when we look to the indictment nothing isaffirmatively charged except rape. While it is true, he is charged with assault to rape, aggravated assault, etc., byinclusion, yet that manner of charging is not that which is meant by article 751, but it means directly and affirmatively charged. The verdict is the same as if it were, `We, the jury, find the defendant guilty of rape,' because it says that which is theequivalent thereto. `We, the jury, find the defendant guilty ascharged in the indictment,' which is rape, and nothing else. Let us suppose that the appellants on another trial should interpose a plea of acquittal of rape. Their plea would be worthless. Why? Because the jury have convicted of rape, the offense charged in the indictment. We do not wish to elaborate this question any further.
"We have examined the case of Slaughter v. State, 24 Tex. 410 [24 Tex. 410], and we do not believe the views above expressed antagonize the opinion of Judge Roberts in that case. On the contrary, we believe the reasoning in that case is in consonance with this opinion. We also believe that we are supported by the opinion of the court in Nettles v. State, 5 Texas Crim. App., 386. However, the case of Guest v. State, 24 Texas Crim. App., 530, holds the contrary view to those herein expressed, and we accordingly overrule said case.
"Appellant contends that the verdicts of the jury should be held null and void because certain words are misspelled. We quote the verdicts as follows (both being alike): `We, the jury, find the defendant "guity" as charged in the indictment, and assess his punishment at confindment in the State penitenitory for a term of fifty years.' Formerly this character of verdict was held so uncertain in its terms as not to afford the basis of a judgment, and a number of cases were reversed on the imperfect spelling of the word `guilty.' See Taylor v. State, 5 Texas Crim. App., 569; Curry v. State, 7 Texas Crim. App., 91; Wilson v. State, 12 Texas Crim. App., 481; Harwell v. State, 22 Texas Crim. App., 251. But since the rendition of the last mentioned case the rule has been different. This court has held a number of verdicts in which the word `guilty' was misspelled, being written in some `guitty,' `guily,' `guilty,' sufficient; the rule being that,where the sense is clear, neither incorrect orthography nor ungrammatical language will render a verdict illegal or void, andthat it is to be reasonably construed, and in such manner as togive it the meaning intended to be conveyed by the jury. See Birdwell v. State (Texas Crim. App.), 20 S.W. Rep., 556; Shelton v. State, 27 Texas Crim. App., 443; Stepp v. State,31 Tex. Crim. 349; Attaway v. State, 31 Tex.Crim. Rep.; Roberts v. State, 33 Tex.Crim. Rep.; Harris v. State (Texas Crim. App.), 34 S.W. Rep., 922; Price v. State, 36 Tex. Crim. 403. We have been particular to cite the authorities, sothat hereafter no one may claim to have been misled throughignorance as to what the holdings of this court have been on thissubject. A little care and attention on this subject would save this court much trouble as to matters of this character. *Page 438 The judgment is affirmed." (In quoting this opinion all the italics are mine.)
The McGee case can not be distinguished from this case. The decision in the McGee case has never been modified, qualified, distinguished, nor overruled, but many times approved "even as late as in the Burton case 62," supra, and also in Willingham v. State, 62 Tex.Crim. Rep., and Day v. State, 62 Tex. Crim. 527. The logic and argument of Judge Hurt and his associates therein is unanswerable. It applies fully and wholly to this case. He and Judges Davidson and Henderson even go further in that case than Judge Harper and I go in this case. There, not only was rape, submitted to the jury for a finding, but also assault to rape was submitted by the court's charge. In this, only murder in the first degree was submitted. Murder in the second degree was not submitted nor any other unlawful homicide.
Again, in every criminal case, it is necessary that the verdict shall find the defendant "guilty." This is absolutely essential. No verdict could stand without it. In the earlier decisions of this court, as shown by Judges Hurt, Davidson and Henderson, in the McGee case, this court reversed cases because the verdicts, instead of finding the defendants "guilty" found them "guitty," "guily," "guitly," but they in the McGee case, overruled all such decisions.
Again, Judge Davidson, in his dissenting opinion, calls attention to the case of Holland v. State, 38 Tex. 474, which is absolutely in point in this case, and the reasoning thereof is unanswerable, and the conclusion reached is, without any doubt, correct. But Judge Davidson says he will not discuss that case because it was overruled in the Buster case, and says: "But as Judge Prendergast recently said in his dissenting opinion in the Harris case, `this was by the old semi-colon court,' by which I suppose he meant it was not of very high dignity, and not to be quoted as authority." The Harris case is reported in 160 S.W. Rep., 447. Judge Davidson in that case, cited as authority, Statev. Butler, 38 Tex. 560, and claimed that case as authority for his holding in the Harris case. The Butler case, as I showed in the Harris case, was not in point and should not be construed as supporting Judge Davidson's opinion in that case. I think, he is therefore clearly estopped from contending in this case that I ought not to rely upon the decision of said court in the Hollandcase, which clearly and without doubt decides the identical question that is in this case, and was the question and the only question in that case for decision; for he not only relied on the decision in the Butler case by the same court in the same volume of Reports, but went further and held that case, which was not in point therein, was authority. The difference between us in that and this case is: He held as authority, the Butler case, which was not in point, and now holds that the Holland case, in the same volume by the same court, which is directly in point, is not authority. Whereas, I held in the Harris case that the Butler case was not authority, and it was not, but hold that the Holland case is authority and directly in point. *Page 439
I want it distinctly understood that in all murder trials under the old statute, that the lower courts should see that the verdicts read guilty of murder in the "first degree" or in the "second degree," as the case may be, not only because the statute says so, but to avoid just such a question as arises and is urged in this case.
This opinion is much longer than I intended. I certainly regret its length. I fully concur in Judge Harper's opinion and the affirmance of this case.