Ely v. State

ON MOTION FOR REHEARING.

GRAVES, Judge.

The State in its motion herein requests a clarification of the following portion of our original opinion in order that it might be governed thereby in the event of a new trial. The portion of such opinion complained of being as follows: “Now, what facts or circumstances have we in the instant case which show malice or a previously formed design on the part of the appellant to kill the deceased? None.”

The State’s attorney is apprehensive of the fact that such a holding would effectually bar him from the effort to introduce certain testimony relative to statements made by appellant showing a possible previously formed design to take the life of any peace officer attempting his arrest, whether legal or illegal, as well as other statements and actions upon appellant’s part evidencing a heart regardless of social duty and fatally bent on mischief towards any and all officers with whom he might come in contact.

The complained of excerpt from the original opinion, of course, could only apply to the record as was therein presented to us, and would not preclude the State from an endeavor to show excessive force in effecting an enlargement from custody, for instance, nor would it preclude an endeavor to show a malicious intent. Nor did we mean to say that malice could not be shown in this case upon a new trial thereof, but merely meant to say that the present record did not, in our opinion, show such a condition of appellant’s mind at the time of the killing.

We again refer to the quotation in the original opinion from Parks v. State, 99 S. W. (2d) 943, and reiterate that quoted portion thereof wherein it was said: “We did not intend to leave the impression that there must of necessity be evidence of premeditation or a previously formed design- to kill. A killing might occur under circumstances, where malice could be inferred.”

We do think that under the instant;facts; .presented to us herein no malice was shown.

With these remarks.the motion is overruled.