The state challenges the soundness of the conclusion reached in our original opinion that where the state seeks *Page 231 a punishment of more than five years in prosecution for murder, the indictment must contain an averment that the killing was done with malice aforethought.
The solution of the question calls for construction, in part at least, of the new murder law passed by the 40th Legislature. This law is something new in the jurisprudence of the State. In fact, it is somewhat of an anomaly. It has no precedent in the common law and so far as the writer knows, no counterpart in the statutory law of any other state in the Union. Under these circumstances it is not surprising that the question now before us should have arisen, and it should not be unexpected that for the same reason many others will arise to vex the courts until the bench and bar of the state have by experience learned to operate this new piece of judicial machinery.
By Chapter 274, page 412, Acts 40th Legislature, Article 1256 of the Penal Code, defining murder, was amended to read as follows:
"Whoever shall voluntarily kill any person within this state shall be guilty of murder. Murder shall be distinguished from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or which excuse or justify the killing."
At the same time by amendment of Article 1257 P. C., punishment for murder was fixed at death or confinement in the penitentiary for life or for any term of years not less than two. That part of our statute which had theretofore defined "manslaughter" as an offense and prescribed its constituent element was repealed in toto. However, the said Legislature did enact Article 1257a which provides that evidence of facts and circumstances of the killing and evidence showing the condition of the mind of accused might be considered by the jury in determining the punishment, thereby recognizing that the state of mind of the slayer was still something to be considered, notwithstanding "manslaughter" as a substantive offense was being wiped from our statute. If the Legislature had stopped here the question now being considered could never have arisen because one charged by indictment with having voluntarily — intentionally — killed another, would have been subject to punishment within the discretion of the jury, from two years in the penitentiary to death, regardless of whether the slayer did or did not act upon malice aforethought. The Legislature, however, was not content to leave the law in the condition resulting from the above amendments so it enacted Section 3a, of said chap. 274 as follows: *Page 232
"In all cases tried under the provisions of this Act, it shall be the duty of the Court to define 'malice aforethought' and shall apply that term by appropriate charge to the facts in the case and shall instruct the Jury that unless from all the facts and circumstances in evidence the Jury believes the Defendant was prompted and acted with his malice aforethought, they cannot assess the punishment at a period longer than five years."
By the foregoing clause the Legislature clearly recognized that while all killings actuated by malice aforethought were voluntary — that a killing might be voluntary with malice aforethought absent. Section 3a is just as much a part of the present murder statute as any other portion. By its terms it thus became the law that unless one charged with killing another be shown upon trial to have been prompted by and acted with malice aforethought, his punishment could not be more than five years in the penitentiary. The whole act of the Legislature must be construed together. The meaning is just as clear as if Article 1257 had read, "The punishment for murder shall be death or confinement in the penitentiary for life, or for any term of years not less than two, provided the punishment shall in no event be more than five years unless the slayer was prompted by and acted with malice aforethought." The presence of malice aforethought became by this article a fact issue for the determination of the jury under appropriate instructions.
The indictment in the present case charges only that appellant "did voluntarily kill H. J. Hendrix by shooting him with a gun"; in other words, it charged an intentional killing which may or may not have been prompted by malice aforethought. The state proposed to seek and did secure a penalty of more than five years in the penitentiary, but omitted to advise appellant by any averment in the indictment that it purposed to put him on trial for his life because of a killing done by him with malice aforethought. If this could be done in a case of this character it is contrary to previous holdings of this court as manifested by the authorities referred to in our original opinion.
A judgment in both civil and criminal cases must be supported by the proof and must follow and correspond with the pleading, which in a criminal case is the indictment. The proof permissible and the punishment allowable are always measured by the allegations of the indictment. This is axiomatic and the principle found expression in our old Code of Criminal Procedure, and has been brought forward in every succeeding Code, and is found now under Art. 397 of the present C. C. P., which reads: *Page 233
"Everything should be stated in an indictment which is necessary to prove."
Unless we entirely misinterpret Section 3a of the present murder statute proof of "malice aforethought" is indispensable before punishment of more than five years may be secured; if indispensable to prove how can Art. 397 Cow. C. P. be complied with without averring it? The state would scarcely contend that upon an indictment which charged one with stealing property of the value of ten dollars — a misdemeanor — it would be entitled to a judgment condemning the party to be guilty of a felony because upon trial the proof showed the property to be worth a hundred dollars. It is evident that if the indictment charged felony theft and the evidence fell short of the necessary proof as to value, the indictment could only support a misdemeanor conviction. The books are full of instances. A difference between simple assault and aggravated assault may arise from the insertion or omission from the indictment of the allegation that the weapon used was a deadly weapon, but the heavier penalty allowable in case of prosecution for aggravated assault could not in any case be inflicted unless the indictment had alleged that the assault was with a deadly weapon; again the difference between assault with intent to murder and the lower grades of assault punishable by a less penalty, is that the indictment for the former must allege that the assault was with intent to kill; no matter how fully the proof might show an intent to kill the enhanced penalty for assault to murder could not be inflicted save the indictment contained the allegation that the assault was with such intent. So, one charged with assault with a deadly weapon might be punishable for a misdemeanor only, even though the proof showed that in the conflict he put out the eye of the assaulted party, but by inserting in the indictment the allegation that the assaulted party "wilfully and maliciously" put out the eye of the assaulted party and supporting that allegation by proof, an enhanced penalty of from two to ten years in the penitentiary might be inflicted. Article 1177 P. C. provides:
"When any person is falsely imprisoned for the purpose of being removed from the state . . . such false imprisonment is kidnapping."
The same article fixes the punishment for kidnapping at confinement in the penitentiary for not less than two years nor more than five years, or by a fine not exceeding two thousand dollars. Article 1178 P. C. provides that: *Page 234
"If the person so falsely imprisoned be actually removed out of the state the punishment shall be imprisonment in the penitentiary for not less than two nor more than ten years."
The offense of kidnapping is complete when the person is falsely imprisoned for the purpose of being removed from the state, but the increased punishment can not be inflicted unless the actual removal from the state is accomplished. Therefore, it could scarcely be urged that the increased punishment would be authorized in the absence from the indictment of an allegation that the party so kidnapped was actually removed from the state. (See Wilson's Criminal Forms, No. 491, and authorities cited in the notes thereunder.) Art. 1179 P. C. defines abduction as:
"The false imprisonment of a woman with intent to force her into a marriage or for the purpose of prostitution."
Art. 1182, P. C. fixes the punishment for abduction by a fine not exceeding two thousand dollars, but further provides that if by reason of such abduction a woman be forced into marriage punishment shall be confinement in the penitentiary for not less than two nor more than five years, and if by reason of such abduction the woman be prostituted the punishment shall be confinement in the penitentiary not less than three nor more than twenty years. This statute was construed in the case of DeHart v. State, 87 Tex.Crim. R., 218 S.W. 1047. The indictment in that case charged the abduction of a girl for the purpose of forcing her into marriage but omitted to allege that after the abduction the marriage actually occurred. The court charged the jury that if accused abducted the girl and did thereafter force her into marriage they would find him guilty of a felony and assess his punishment at not less than two nor more than five years in the penitentiary. Judge Davidson, speaking for this court, said:
"If abduction occurs for the purpose of forcing the girl into marriage, — and that is the State's case as charged in the indictment, — the punishment would be by fine not to exceed two thousand dollars, which would be a misdemeanor, but the court here authorized the conviction for the felony and he was allotted a punishment in the penitentiary for such felony. The court could only authorize the conviction for the misdemeanor. This charge is clearly wrong and authorized a conviction for anoffense not charged in the indictment. (Italics ours.)
Art. 409 Cow. C. P. prescribes the form of indictment for murder as follows: *Page 235
"A. B. did with malice aforethought kill D.C. by shooting him with a gun"; or "by cutting him with a knife."
It is true this form of indictment was specified many years ago under the old definition of murder. That an indictment under said form is sufficient has been held many times. (See Note 10, under Art. 1256, Vernon's Crim. Statutes of Texas, P. C., Vol. 2, page 449.) In amending the murder statute the 40th Legislature repealed many articles of the Code, but not 409, supra. We do not undertake to say what significance, if any, should be attached to this fact. We call attention to it because the Legislature knew of the provision of said Art. 409, and are presumed to have known that indictments following the form had been sustained by this court. The old form has been held good since the Act of the 40th Legislature became the law. (See Crutchfield v. State, 110 Tex.Crim. R.,10 S.W.2d 119). If the allegation in the present indictment that appellant killed deceased "voluntarily" by shooting him with a gun charges that the killing was done with malice aforethought, then, of course, the indictment is sufficient to support the verdict and judgment; but does the mere allegation that a killing was done voluntarily include malice aforethought? The reasoning of Judge White in the case of Hayes v. State, 14 Tex. Cr. App. 330, is so pertinent and so forcible, and answers the question so conclusively that we quote from that opinion. The defendant in that case was being tried for assault with intent to murder. The court charged as follows:
"Malice aforethought is the voluntary doing of an unlawful act with the intent, means and ability to accomplish the reasonable and probable consequences of it."
In discussing the charge Judge White said:
"The definition of 'malice aforethought' is not correct; for, under it, a party may commit a killing which would be manslaughter only. 'The voluntary doing of an unlawful act, with the intent, means and ability to accomplish the reasonable and probable consequences of it' would be manslaughter if it was the result of sudden passion, and upon an adequate cause. Or 'the voluntary doing of an unlawful act, with the intent, means and ability to accomplish it,' may apply as well toaggravated, and even simple assaults; or, in fact, to any other felony or misdemeanor known to the Code, if the same is dependent upon act and intent, and which is not dependent for its criminality upon the existence of malice aforethought. 'Malice aforethought' means something in itself, and cannot be a condition only which is equally applicable to most offenses other than murder. To constitute *Page 236 murder, or assault with intent to murder, the act must be voluntary; it must be unlawful; it must have been done with the means and ability to accomplish it; and, over, above, beyond and besides these, and in connection with these, it must also have been done with malice aforethought. Such other ingredients may be essential in part, as evidence of, but they are not, and cannot be said to be, malice aforethought. 'Malice aforethought is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken." (Italics are ours.) It is true the opinion in the foregoing case was written at a time when manslaughter was a part of our law, but whether the killing was manslaughter depended upon the state of mind of the slayer and the conditions which brought about such state of mind. Subsequent opinions which may be interesting to examine regarding the same matter will be found collated in Collins v. State, 108 Tex.Crim. R., 299 S.W. 403.
It is suggested in the state's motion for rehearing that Section 3a heretofore quoted in this opinion provides for "amelioration or mitigation" of punishment, in the absence of certain mental elements at the time of the killing. If it is intended by this suggestion to present the question that Section 3a provides for defensive matter to be interposed by an accused upon trial for murder, and this should be accepted as the correct interpretation, then we would have a most peculiar situation. If such be defensive matter under the terms of Art. 46 P. C. the burden would be upon accused to prove the absence of "malice aforethought" the very thing the presence of which the state must depend upon before it could demand punishment in excess of five years in the penitentiary. The mere statement of the contention appears to demonstrate its unsoundness.
We cannot escape the conclusion reached in the original opinion that where the state intends to ask for a penalty exceeding five years in the penitentiary upon a murder prosecution the indictment must allege that the killing was done with "malice aforethought." This was suggested in the opinion on rehearing in the Crutchfield case, 110 Tex. Crim. 420,10 S.W.2d 119. It was merely a suggestion because all that was said regarding the matter was recognized to be dicta in that case. The writer is firmly of the conviction that where the state expects to ask for a penalty of more than five years, the simplest form of indictment would be to allege in a single count that the accused did "voluntarily and with malice aforethought" kill, etc. This would seem to embrace all of the elements necessary under *Page 237 the present statute, and would support a judgment assessing any penalty provided.
The state's motion for rehearing is overruled.
Overruled.
MORROW, P. J., dissents.
ON STATE'S MOTION FOR REHEARING.