Appellant renews his attack upon the sufficiency of the indictment. We adhere to the view formerly expressed that the indictment in the use of the words "malice aforethought" was sufficiently comprehensive to necessarily embrace a "voluntary" killing under the present murder statute. While not necessary to the decision in this case but because we were dealing with a new statute the opinion was expressed that an indictment which charged in the language of the statute, that accused did "voluntarily" kill another would be sufficient. The present writer entertains the view that it would be the better practice to allege that accused did "voluntarily and with malice aforethought" kill, etc. It may not be absolutely essential to embrace the allegation that the killing was done with "malice aforethought" but it was evidently contemplated by the Legislature that the punishment assessed should depend upon the presence or absence of "malice" in the killing, hence to embrace in the indictment "malice aforethought" in connection with "voluntary" would at least not be inappropriate. This suggestion is not necessary to a decision of this case and is dicta as was the suggestion in our original opinion.
By persuasive argument appellant again insists that the application of the law under the present murder statute where "malice aforethought" is absent was not sufficiently comprehensive. We find it difficult to elaborate further upon the point than was done in our original opinion. To say that the trial court should tell the jury that if certain facts were present malice would be absent, or that malice could not exist under certain states of mind, would involve the trial court in a direct charge upon the weight of the evidence. The point under discussion was considered to some extent in Davis v. State, (original opinion June 6th, opinion on rehearing October 24th) and a charge approved which was substantially like the one given in the present case.
The motion for rehearing is overruled.
Overruled. *Page 430