DISSENTING OPINION OF HURT, JUDGE.
Hurt, Judge.H. M. Sharpe, the appellant, stands convicted of murder in the first degree, with the penalty of death awarded against him. The conviction is illegal and unconstitutional unless he has been tried upon an indictment by which he is charged with all of the component parts — elements — of murder of the first degree. We must look, therefore, to the indictment, and it alone, in order to ascertain if such a charge is made against him.
By the indictment it is charged that appellant, with a pistol, did unlawfully and with malice aforethought kill and murder one JE. Knesek. How, this is equivalent to a charge in terms that the homicide was committed with express malice, or the indictment is most evidently insufficient, and the conviction of murder of the first degree has no support in allegation.
As an original proposition, viewed alone in the light of principle, the writer does not hesitate to say that the allegation that the *501homicide was “with malice aforethought” is not equivalent to a charge that the killing was upon express malice. After a very careful reading of all the arguments accessible in support of the affirmative of this proposition, I am impelled to the conclusion that the argument of Mr. Bishop upon this question has not been, nor can be, answered. (2 Bishop’s Grim. Proc., §§ 561-587, inclusive.)
However, I have yielded to this legal fiction and followed the decisions of our Supreme Court and the Court of Appeals, and sanctioned conclusions of murder of the first degree upon indictments which simply charged that the homicide was with “ malice aforethought,” not because I thought these opinions were at all in harmony with the rules and principles of criminal pleadings, but, believing the question to be settled, I was willing to let it rest.
We will follow this matter no further, but return to the case in hand. We have stated that unless the charge “that the homicide was with malice aforethought ” is equivalent to a charge of killing with express malice, this conviction is without support in allegation, and is of necessity unlawful and in direct violation of the constitutional guaranty belonging to the citizen.
Again, if the prisoner is charged with the crime of murder of the first degree, it is by virtue alone, and for no other reason, of the allegation in the indictment that he shot and killed E. Knesek “ with malice aforethoughts And as this charge is equal to the allegation that he shot and killed E. Knesek with express malice, the prisoner is charged by the indictment of murder of the first degree alone for the reason that he killed deceased with express malice.
If this last proposition is incorrect, then we say, with supreme confidence, that the prisoner is not charged with murder of the first degree at all.
In Bohannan v. The State, 14 Texas Ct. App., 271, the defendant was charged with killing J. L. Knox with malice aforethought, by shooting him with a gun, and this court sustained a conviction of murder of the first degree because the proof showed a homicide upon express malice. Hence we ask, in the name of principle, reason and common sense, how this court could affirm a conviction for murder of the first degree unless the defendant had first been charged by indictment with this degree of murder?
Sharpe, being charged by the indictment with the crime of murder of the first degree, because he killed E. Knesek with express malice, must this charge be established by the State by proof that he did Mil deceased with express malice? The grand jury informed the defendant by indictment of the nature and cause of the accusa*502tian against him. He was informed that he had committed the crime of murder of the first degree, because he had, with a pistol, unlawfully and with his malice aforethought killed and murdered E. Knesek; and, as we have seen, this is a charge of murder upon express malice. The information furnished the defendant by the indictment was that he had committed murder of the first degree, because he had unlawfully, with a pistol, shot and killed E. Knesek with his express malice aforethought.
The prisoner thus being informed of the nature and cause of the accusation against him, must the State establish that this information is true by proving that the defendant verily did unlawfully shoot and kill E. Knesek with his express malice aforethought? In the light of the decisions of this court upon this question, is it required of us to submit an argument to sustain the affirmative of the question propounded? We think not; for the most simple and plainest principles of criminal pleadings and proof furnish a conclusive answer to this question. One question, we think, will suffice. Wherefore the necessity of informing the defendant of the nature and cause of the accusation against him, unless the State is held to the nature and cause of which by the indictment he has been informed ?
Appellant was told by plain and intelligible language that he had committed the great crime of murder of the first degree because he had, with a pistol, unlawfully shot and killed E. Knesek, with his express malice aforethought. He was thus informed of the nature and cause of the accusation against him. Upon this accusation he Avas arraigned, and to this he pleaded not guilty, and Upon the trial he came prepared to meet the accusation, as alleged in the indictment, and no other. He Avas informed that he shot and killed E. Knesek; this he denied and was prepared to meet; that he killed him with his express malice aforethought; this he denied and Avas prepared to meet. Was he informed of anything else, and was it possible from the information given him hy the indictment for him to be prepared to meet anything else? Most evidently not.
My brother Willson; however, takes a different view of the purport of the allegation “ with malice aforethought.” He concedes that, if the indictment had charged that the homicide Avas with express malice aforethought, the State under such a charge Avould be held to prove that the murder was of the first degree, by reason of express malice aforethought alone; and that the defendant’s guilt of murder of the first degree could not be made by thé charge of the court to depend upon anything else. He saysi “But how*503ever this may be, that question does not arise in this case because the indictment alleges none of the species of murder in the first degree, but alleges murder in the first degree generally, that is, a homicide with malice aforethought, thus alleging in effect all kinds or species of murder in the first degree that could be committed by the means alleged, that is, by shooting.” From this quotation it will be seen that murder of the first degree is divided into different species, and that when one of the species is charged in the indictment the proof and charge of the court must -be confined to that. But, as the charge “ malice aforethought ” represents all murder of the first degree with all of its species, the proof and charge of the court are not restricted to any of the species, and are only limited to the means or weapons alleged in the indictment.
How, we do know that malice aforethought (all of it) is an absolutely necessary ingredient of murder of the second degree. We could enlarge here, but have not the time. \
Again, it appears from the doctrine of Judge Willson that we have a murder of the first degree represented or charged by the allegation with “ malice aforethought,” which stands as the genus of all murder of this degree, and that there are species of this degree of murder. ' How, we would most seriously ask of what elements is this genus murder composed? Are its component parts the same as those constituting murder of the first degree by express malice aforethought? If so, the latter is not a species. Does it contain more elements than murder upon express malice aforethought. If so, what are they? Or is this offense (genus murder of the first degree) composed of all the elements entering into each and all of its species ? If so, we doubt the ability of the writer, or of any other person, to draw a good and sufficient indictment for this offense.
How we believe, and think we know, that the plain and simple truth is that murder of the first degree can be committed in eight distinct ways; just as an aggravated assault and battery may be committed in divers distinct ways; and that the procedure, so far as the question at issue is concerned, should be the same; that is, the indictment should select that which is indicated by the evidence. To illustrate: if the evidence shows a case of murder of express malice, charge this; or if the evidence tends also to show a murder in the perpetration or attempt at the perpetration of arson, rape, robbery or burglary, or by poison, starving or torture, charge murder by express malice, and insert counts for murder by poison, starving or torture, or in the perpetration or attempt in the perpetration *504of arson, rape, robbery or burglary, as is suggested by the evidence.
We are not to be understood as intimating that under an indictment which charges a murder by express malice, proof that it was committed by poison, starving or torture, or that it was committed in the perpetration or in the attempt at the perpetration of the' offenses named in the Code would not be admissible.
We have digressed from'the main issue far enough; let us return to Judge Willson’s theory. He says that the allegation that the killing was with “ malice aforethought ” charges murder of the first degree generally. With the highest regard for the opinion of my brother, permit me to say that this proposition cannot possibly be correct, except upon one theory, which is that a charge of the greater includes the lesser degree. But the lesser degree must be charged by alleging [its elements, and no more, or by alleging the higher degree which includes the lesser.
How, if it is necessary to constitute murder of the second degree that the homicide be committed “ with malice aforethought,” how" is it possible to include this degree of murder by charging a murder with malice aforethought? A. is charged with killing B. with' malice'aforethought; this is equal to and in fact is a charge that A. committed murder of the first degree. Why is A. not charged with murder of the second degree, not by being included, but directly? We can be extricated from this dilemma only by holding that the allegation that the homicide was with malice .aforethought charges a murder upon express malice aforethought. That the purport of this allegation is the same as if the allegation had been “ that the Homicide was with express malice aforethought,” in terms.
But, let us concede that our views may be erroneous upon this" branch of the subject, nevertheless the main and vital question recurs, which is, was the defendant informed by the indictment that his life would be demanded'because he murdered E. Knesek “in the perpetration or in the attempt at the perpetration of the crime of robbery? ” It is conceded by Judge Willson that, if the indictment had charged the murder upon express malice aforethought, the State would have been confined to this allegation, and the guilt of the; defendant of murder of the first degree made to depend alone upon proof of express malice aforethought.
This proposition, we have no doubt, can be sustained' upon the ground that to make the defendant’s guilt of murder in the first-degree depend upon any other matter except express malice would be a variance and departure from the allegation, to wit, that the *505defendant was guilty of murder of the first degree because he murdered the deceased with express malice aforethought. To this we agree. But that is not the question. Did this indictment give the prisoner the slightest intimation that he had murdered the deceased in the perpetration or in the attempt at the perpetration of robbery, is the question. He was informed that he shot and killed E. Knesek with malice aforethought. In this there is not the most remote hint that his life would be demanded because he had shot and killed E. Knesek in the perpetration or in the attempt at the perpetration of robbery.
As a murder may be committed in the perpetration or in the attempt at the perpetration of robbery without necessarily being upon express malice, was not the fact that the murder was committed under such circumstances of the highest and most awful importance; and of fearful consequences to the defendant? A. murdered B. without express malice — penalty not death. A. murdered B. without express malice, but in the perpetration of robbery,— penalty (in this case) death. The question of fact, namely, was the murder in the perpetration of robbery, is therefore of superlative importance, for upon its decision the prisoner is to live or die.
This being the case, did not the plain principles of common justice require of the State to tell him in plain language that he thus murdered the deceased? But it may be insisted that he was informed that he murdered the deceased in the perpetration of or in the attempt at the perpetration of robbery by the allegation that “ he killed him with his malice aforethought.” In answer to this we most respectfully submit Mr. Bishop’s reply to quite a similar proposition: This is informing a defendant of the ‘ nature and cause of the accusation against him ’ with a vengeance.” The indictment informed the defendant that he had killed and murdered E. Knesek with malice aforethought; therefore, it is contended that he can legally be convicted of murder of the first degree if the homicide is upon express malice, or the murder be in the perpetration or in the attempt at the perpetration of robbery. If so, such an indictment charges not only murder upon express malice, but a murder in the perpetration or in the attempt at the perpetration of robbery, rape, arson and burglary. Such an indictment is a complete dragnet, catching in its folds all murder of the first degree, with their distinct elements. We had thought that the provision of the Constitution which guaranties to the citizen the right to be “ informed of the nature and cause of the accusation against him,” was eminently a practical matter, and that the nature and cause of *506the accusation against him should be “set forth in plain and.intelligible language.”
In this case the State demanded the life of a citizen because he murdered a fellow-citizen in the perpetration of robbery. lie was informed that he murdered his fellow-citizen with malice aforethought. Was this informing him in plain and intelligible language that the murder was in the perpetration of robbery ? If so, he was sis plainly informed that the murder was committed in the perpetration or in the attempt at the perpetration of arsost, rape and burglary, if the means or weapon used is the same as alleged in the indick ment. This being the information furnished him by the indictment, he must prepare to meet a case of murder of the first degree by reason of the fact that it was committed in the perpetration or in the attempt at the perpetration of rape, arson, burglary and robbery as well as upon express malice. All of these offenses, to wit, arson, rape, burglary and robbery, are composed of distinct elements. In order to make a thorough defense, therefore, the component parts of each should be understood, for if the murder was not committed in the perpetration or the attempt at the perpetration of one of the offenses technically, the defendant could not legally be convicted of murder of th& first degree unless express malice be shown. And as the main object to be attained in informing the defendant of the nature and cause of the accusation against him is to enable him first to understand and then to prepare to meet such accusation, great indeed is the necessity of informing him in such manner (by plain language) that he may with ease and certainty understand the charge against him. This should be treated as a plain practical matter. If so, is it reasonable to conclude that a person of average capacity would ever dream from the information furnished him by the indictment that he would be called upon to meet a charge of murder in the perpetration of arson, rape, burglary and robbery,— each and all of these matters? To thus conclude is not only unreasonable but preposterous.
A plain and, as we think, a perfect analogy is the following: The use of any unlawful violence upon the person of another with intent to injure him is an assault and battery. The unlawful killing of a reasonable creature in being is murder. This assault or battery becomes aggravated when committed under certain named circumstances. Murder becomes of the first degree when committed uncler certain named circumstances. To convict of aggravated assault or battery, the indictment must charge the circumstances of aggravation. To convict of murder of the first degree the circumstances *507which raise the murder to that degree must be alleged. The alleged circumstances of aggravation must be proved, to convict of the aggravated offense. The alleged circumstances (those which elevate the murder to the first degree) must be proved, to convict of murder of the first degree. Proof of circumstances of aggravation not alleged will not sustain a conviction for aggravated assault and battery. Proof of circumstances not alleged, though the circumstances establish a murder of the first degree, will not sustain a conviction of murder of the first degree.
That the above observations relative to the pleadings and proof in cases of aggravated assault or battery are strictly correct is established by an unbroken line of decisions of this court. How, then, if this be the law in misdemeanors, much stronger and more cogent the reasons for the rule in cases of life and liberty!
I am of the opinion, therefore, that the court erred in charging the jury that they should convict the defendant of murder in the first degree if they believed that the murder was committed in the perpetration or in the attempt at the perpetration of robbery; because the prisoner had not been informed of this matter by the indictment.
I think the judgment should be reversed and the cause remanded; and that another indictment should be preferred, charging the murder to have been committed in the perpetration or in the attempt at the perpetration of robbery.
[Opinion delivered January 31, 1885.]
OPINION OF WHITE, PRESIDING JUDGE.
White, Presiding Judge.Our Constitution guaranties to the accused in all criminal prosecutions “ the right to demand the nature and cause of the accusation against him ” (Canst-., art. I, sec. 10), and our statute provides that in all indictments the offense charged must be “ set forth in plain and intelligible words.” (Code Grim. Proc., art. 420, sub-div. 7.)
For three centuries and a half, that is, since the enactment in England of the Statute 23 Hen. 8, chap. 1, § 3, in the year of our Lord 1531, it has been almost uniformly held in the tribunals of all English-speaking people that an indictment for murder punishable with death sufficiently charged the descriptive elements of the offense when it alleged that the crime had been committed by the accused “ feloniously, wilfully (or unlawfully) and of his malice aforethought.” If the constant and almost daily use of this expression for over three *508centuries has failed to give to it a common acceptation which is “ plain and intelligible,” then, indeed, may we doubt and despair that usage can ever give to any expression or set phrase of speech a common meaning and acceptation, or render it “plain and intelligible.”
This same expression, derived from the common law and thus sanctified by age and use, is declared to be the essential element and characteristic of murder, in our statute which defines the crime as one committed “ unlawfully ” and “ with malice aforethought, either express or implied.” (Penal Code, art. 605.) When so incorporated into the statutory definition it must have been wfith full knowledge of all that the words or term “ malice aforethought” meant and implied. What did they mean? At common law, murder without benefit of clergy and punishable with death; with us, the same thing, that is, murder of the first degree, the highest degree, and punishable with the highest penalty,— a murder which embraces all other kinds whether the “malice aforethought ” be express or implied.
It is a general rule of criminal pleading having but few exceptions that an indictment is always sufficient if it charges the offense in the statutory words defining it. The crime of murder has never been held to furnish in this State an exception to the rule. On the contrary, that the common law form is sufficient under our statute, it is said cannot now be questioned. (Perry v. The State, 44 Texas, 473; Gherke v. The State, 13 Texas, 573; White v. The State, 16 Texas, 206; Wall v. The State, 18 Texas, 682; McCoy v. The State, 25 Texas, 37; Galvin v. The State, 25 Texas, 793; Perryman v. The State, 36 Texas, 321; Henrie v. The State, 41 Texas, 573; Tooney v. The State, 5 Texas Ct. App., 163; Dwyer v. The State, 12 Texas Ct. App., 535; Peterson v. The State, 12 Texas Ct. App., 650; McElroy v. The State, 14 Texas Ct. App., 271; Bohannon v. The State, 14 Texas Ct. App., 271; Walker v. The State, 14 Texas Ct. App., 609; Moore v. The State, 15 Texas Ct. App., 1.)
“ It is agreed on all hands,” says Mr. Bishop, “ that the words ‘malice aforethought’are essential in an indictment for murder.” (2 Bish. Grim. Proc. (2d ed.), § 544.) Mr. Bishop, however, in quite an exhaustive argument referred to by Judge Hurt in .his opinion herein, rather dogmatically contends that “ malice aforethought ” does not charge murder of the first degree as contradistinguished from murder of the second degree, and winds up his labored discussion by saying: “On the whole question the majority of our American courts, reasoning in the muddled, confused and contra*509dictory way already described, have held that under our entire statutory provisions, construing those which relate to the procedure with the rest, one charged with a felonious killing of ‘ malice aforethought5 merely may be convicted of murder of the first degree. On the other hand a respectable minority, both in numbers and ability, looking more carefully into the question, have held that the indictment, to justify a conviction for murder in the first degree, must allege whatever the statute makes essential to this degree of murder; and they have not seen that an averment of 5 malice aforethought 5 sets out for example " deliberately premeditated malice aforethought,5 when the sole purpose of the statute was to distinguish between the two, which it does in these express terms, and provides for the latter a punishment heavier than the former.55 But, says the learned author: “It is agreed on all sides that, whichever form of the indictment is employed, the defendant may be convicted on it for murder of the second degree.’5 (2 Bish. Grim. Proc,, §§ 584, 585, 586.)
It were doubtless a profitless business for us at this day, and in its settled attitude, to enter anew upon the discussion of this question. Mr. Bishop admits that the weight of authority in numbers at least is against him, and we have shown how the decisions upon it are in our own State. We prefer to stand by these authorities, which, Mr. Bishop will pardon us for observing, do not appear to us near so muddled either in their reasoning or conclusion as is the strained and labored argument he has made to upset them. At all events, the doctrine enunciated, it seems to us, is easily understood, and that is, that an indictment alleging a murder committed with “ malice aforethought55 charges and will sustain a conviction for murder in the first degree, and not only so, but under our Code will sustain a conviction for all lesser degrees of culpable homicide. (Code Grim. Proc., art. 114, sub-div. 1.)
Does it charge murder upon express malice? Most unquestionably, under the decisions, for they are irreconcilable upon any other conclusion. Does it charge a murder committed in the perpetration, or in the attempt at the perpetration, of arson, rape, robbery or burglary? In our opinion most clearly, and, further, that to the same extent it would embrace and charge a murder by poison, starving or torture.
“ All murder committed by poison, starving, torture, or with express malice, or committed in the perpetration or attempt at the perpetration of arson, rape, robbery or burglary is murder of the first degree.” (Penal Code, art. 606.) “ Malice aforethought55 is *510the synonym of murder of the first degree, no matter how committed, or by which of the enumerated modes committed. It is the essential element of all murder,— the genus to which all the others as mere species belong. It embraces all, includes all, these various modes or species, and when thus alleged in. it may be, general terms, any of the specific modes or species may be proven to sustain the allegation. Under our decisions, “ malice aforethought ” is the correlative — the counterpart — of “ express malice.” The terms are convertible; they mean exactly the same thing; this is the common acceptation and understanding, and this is what the words with us now clearly and certainly import. Aforethought malice, etymologically considered, means preconceived malice — malice engendered when the mind was sufficiently cool, sedate and deliberate as to understand the nature and consequences of the act designed and intended to be accomplished. “ Express malice ” means and is the same thing; nothing more, nothing less.
Why are murders committed by poison, starving, torture, or in the perpetration or attempt at the perpetration of arson, rape, robbery and burglary, murder of the first degree? Simply because it is impossible they could be committed except upon “ malice aforethought,” or “ express malice.” Our statute has not elevated them either in character or degree by declaring that such murder should be murder of the first degree. It is on account of the aggravation and heinousness of such complex murders that the law has wisely provided that there shall be, as to them, no second degree, nor milder punishment than that awarded to murder of the first degree. And the sole object of article GOG, as we believe, was to declare this important fact,— to make murder committed in any of these exceptional modes per se murder of the first degree and subject to the highest punishment known to the law.
It is true that, if the design be not to kill the deceased or inflict upon him some serious bodily injury, but to commit some other felony, it has been held that the killing will not be on express malice. This rule cannot be applied to the conditions enumerated in article GOG, because it is expressly declared otherwise by the statute. Even at common law, this rule was subject to the exception that, if one or more persons enter upon the commission of a felony in such a way as to show a preconceived resolve to kill or do great bodily harm to all or any one who may oppose the design, the murder was held to be upon express malice. (4 Blacks. Com., 200.)
In the view we take of article 606, it does not declare and never *511was intended to declare that the different modes mentioned were separate, distinct, and independent substantive offenses, either one of which would be a murder differing in character, degree or punishment from any other murder of the first degree; but that the sole object was to specify and enumerate the classes, modes, types, or species if you please, of the one general class or genus — murder — a murder with “ malice aforethought,” and of the first degree, as distinguished from all other murder, which would be murder of the second degree. “Express malice” or “malice aforethought” is evidenced and proved by external circumstances, discovering the inward intention; and these several types, classes, modes or species are at last but evidences,— external evidences,— of the malice aforethought, the express malice, of murder in the first degree. They are each and all embraced in the charge “malice aforethought,” and either or any of them may be adduced in evidence to support the charge.
It is a rule of criminal as well as of civil pleading that the pleader is never required to plead his evidence. All that is necessary to the sufficiency and validity of an indictment is that every element on which the punishment for the offense depends must be so averred that the accused may be informed of the nature of the crime and the punishment to which he is liable. An indictment thus charging the crime fully apprises and notifies the accused “ of the nature and cause of the accusation against him.”
In the indictment in the case under consideration the murder was charged to have been committed with malice aforethought and by shooting the deceased with pistols. The time when, place where, and party killed were all explicitly stated. Was he notified of the crime and every element on which his punishment depended? What did this charge tell him? It told him, as our authorities in Texas hold, and as has been held for three and a half centuries, “ you killed deceased of your malice aforethought, which is your express malice, and that charge, if proven, carries with it the punishment of murder in the first degree.” But his objection is, “ you did not notify me that you intended to hold me liable by proving that I killed the deceased in the perpetration or attempt at the perpetration of robbery.” Our answer is, “ the charge is equivalent to a charge of murder on express malice; if so, it notifies you of all the elements on which your punishment depends. You are told when, where, and who it was you murdered, and that the State can and will prove it by showing, as she has the right to do, all the attendant external circumstances,—* the res gesteeof the diabolical *512transaction; all of which are fully known to you, whether these circumstances disclose that you committed the crime either in the perpetration or attempt at the perpetration of arson, rape, burglary or robbery; for you may have committed it in any of these modes under the charge preferred against you, none of them being inconsistent; but each and all entirely consistent and in perfect accord and harmony with the charge. We have the right and shall prove everything you did and were doing when you murdered your victim. And if any such incentives to the foul deed as the perpetration or attempt at the perpetration of arson, rape, robbery or burglary are proven to have actuated your crime, then the court charging, as it is required to charge, the law applicable to the facts, will charge the jury that a murder thus committed is per se murder in the first degree; because the law says so, and because that is the crime charged against you in the indictment.”
I fully concur in the opinion of my brother Willson, that this indictment will support the conviction for murder in the first degree. I further concur with him most fully in the conclusion that, under the charge in this indictment and the evidence adduced on the trial, the court properly charged the jury that a murder committed in the perpetration or attempt at the perpetration of robbery was murder of the first degree, and that they could and should convict defendant of murder of the first degree if they found from the evidence he had committed it under such aggravating circumstances.
As descriptive of the identity of the offense, had the indictment, with unnecessary particularity, have charged that the murder was committed in the perpetration or attempt at the perpetration of rob: bery, then, indeed, the State would have been held and required to prove a murder committed under those precise circumstances and none other. (Warnington v. The State, 1 Texas Ct. App., 168; Tooney v. The State, 5 Texas Ct. App., 163.)
Where, however, the offense is charged to have been committed with “ malice aforethought,” or with “ express malice,” which latter we have endeavored to show is but the correlative, equivalent, con: vertible term or synonym for “ malice aforethought,” then the writer is of opinion that proof of, and a charge of the court upon, murder committed in the perpetration or attempt at the perpetration of arson, rape, robbery or burglary would be in consonance with the indictment, and admissible and legitimate under it. So believing, he therefore still holds and insists upon the doctrine announced in Roach v. The State, 8 Texas Ct. App., 479, and Reyes v. The State, 10 Texas Ct. App., 1.
*513With this discussion of my individual views of the main question involved in this case, and fully concurring in the other questions decided and the general result arrived at by Judge Willson as to the disposition of the case, I am of opinion the judgment should be in all things affirmed.
Affirmed.
[Opinion delivered January 31, 1885.]