The appellant was convicted of murder in the second degree. “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 *237of murder.” To constitute this offense without regard to degrees, the killing must not only he unlawful, but the slayer must be incited to kill by malice. Malice is, therefore, an essential element, and must prompt the slayer to the act of killing in every case, whether of the first or second degree.
Is a charge which fails,—in fact, does not attempt,— to define or explain malice such an one as is required by the law? This explanation or definition being omitted, does the charge present the law applicable to the case? It. being absolutely a necessary ingredient of this offense, a clear understanding of the term “malice,” by the jury, was of vital importance to the proper decision of the main question, to wit: was the defendant guilty of murder? Its existence forms the pivotal point in all murder trials in which the contest is between murder on the one side and manslaughter, justifiable, negligent or excusable homicide on the other. Without it there can be no murder. We are of the opinion, therefore, that a charge which fails to explain this element does not present the law applicable to the case. This defect in the charge was pointedly called to the attention of the court by the motion for a new trial herein. Bishop v. State, 43 Texas, 390.
We are authorized to revise the action of the court below, though a proper charge was not requested at the time by the defendant. These authorities, we think, place at rest the question above presented: Hodges v. State, 3 Texas Ct. App. 470; Anderson v. State, 1 Texas Ct. App. 730; Smith v. State, 1 Texas Ct. App. 517; Williams et al. v. State, 3 Texas Ct. App. 316.
We are also of the opinion that the case as made by the facts is such as required a charge upon manslaughter. (The Reporter will give the evidence.)
The State, we think, clearly had the right to prove that deceased was under the influence of whisky. The other errors complained of by the attorney for defendant will *238not likely arise again upon another trial. The motion for rehearing is granted, and upon the merits the judgment, for the reasons stated above, is reversed and the cause remanded.
Reversed and remanded.