The State has filed a motion for rehearing, and a persuasive argument in connection therewith, asserting that our original opinion strips Article 1229 of the Penal Code of any meaning, and leaves it with no effective field of operation. We think the effect of the opinion is exaggerated. If the State had proceeded to trial under the first count of its indictment wherein it was alleged that the killing occurred by the use of the same means as charged in the second count, but with the additional allegation that it was done with "malice aforethought" the present controversy would not have arisen. There can be no question that when the Legislature enacted Article 1229 it created, as it had the unquestionable right to do, a new criminal offense. After fixing the penalty under ordinary circumstances it could have provided further that in the event the life of any person be lost by any unlawful act so denounced that the punishment should be the same as in murder, or specifically, have fixed any punishment thought proper, just as in robbery (Article 1327, Penal Code) an increased punishment is provided where the offense is perpetrated by the use of a firearm or other deadly weapon; or as in swindling, (Article 1421 and 1427 Penal Code) after defining the offense, it is provided that the punishment shall be the same as *Page 664 in theft, or in receiving stolen property (Article 1349 Penal Code) the punishment shall be the same as for theft thereof. But when the Legislature announced that if a life be lost as a result of any unlawful act covered by Article 1229 that the party should be deemed guilty of "murder," we think it beyond our authority to hold that the Legislature intended to abrogate one of the essential features of murder, to-wit, "malice aforethought" as it applied to a killing so occurring, and we adhere to our original views that to charge murder under such circumstances it is necessary to allege that the killing was done with "malice aforethought."
In an indictment charging murder by any of the means unspecified in Articles 1229, supra, in which indictment there is embraced an allegation that the homicide was committed withmalice aforethought, the State is not embarassed by the necessity of proving that malice was entertained against any particular individual. On this subject, we quote from the opinion of this court in Tooney's case, 5 Texas Crim. App., 189:
"The design formed must be to kill the deceased, or inflict some serious bodily harm upon him. This would indicate that the malevolence must be directed towards the deceased as its object. . . . This design is not confined to an intention to take away the life of deceased, but includes the intent to do any unlawful act which may probably end in depriving the party of life. Roscoe's Crim. Ev., 707; Stark on Crim. Pl., 711. This specific malevolence towards the person killed may be embraced in such utter and reckless disregard of life as shows a man to be an enemy to all mankind — as, when a man resolves to kill the next man he meets, and does kill him; or shoots into a crowd wantonly, not knowing whom he may kill. 4 Bla. Co. 200. McCoy v. State,25 Tex. 33. "Malice express consists in the actual and deliberate intention unlawfully to take away the life of another, or do him great bodily harm. Implied or constructive malice is not a fact, but is an inference or conclusion founded upon the particular facts and circumstances of the case as they are ascertained to exist. McCoy v. The State, 25 Tex. 33; 2 Stark on Crim. Pl. 711."
The first count in the indictment, that which charged murder, having been abandoned after jeopardy attached the state is concluded as to that phase of the offense. Touching the second count, the effect of the opinion is to eliminate from the statute as a substantive offense that part in which it is said: "If the life of any person be lost by such unlawful act, the offender is guilty of murder." As very pertinently argued by State's counsel, there might be a prosecution for murder under the general statute, and such was the charge in the abandoned first count. Under the statute in question, (Art. 1229) the acts charged against appellant in the second count would constitute an offense punishable by confinement in the penitentiary for a period of not less than two nor more than seven years. *Page 665
Instead of ordering a dismissal of the present prosecution as was done in the original opinion the motion for rehearing is granted to the extent that the judgment is reversed and the cause remanded. With this modification, the state's motion for rehearing is overruled.
Overruled.
*Page 177