At a former day of this court this case was affirmed and appellant has filed his motion for a rehearing, restating many of his former assignments and in addition thereto, insisting that this cause should now be reversed because the Act of the Thirty-third Legislature made all killings with malice aforethought murder, without making different degrees of murder. He insists that that Act repealed murder in the second degree and that the repealing statute substituted no other penalty for the offense which was heretofore designated murder in the second degree. This opinion will be confined to a discussion of this last proposition as all the others were thoroughly reviewed in the original opinion.
Prior to the Act of the Thirty-third Legislature, page 238, relating to murder, the law provided that "every person of sound memory and discretion who, with malice aforethought, shall unlawfully kill any reasonable creature in being in this State shall be guilty of murder"; and following this law were articles which defined murder in the first degree and murder in the second degree, and which were repealed by the Act of the Thirty-third Legislature referred to and which was substituted for those articles. The new Act above mentioned, passed by the Thirty-third Legislature repeals articles 1140, 1141, 1142, and 1144, Revised Penal Code of the State of Texas, 1911, and inserts in lieu thereof articles 1140 and 1141 which read as follows:
"Article 1140: Every person with sound memory and discretion who, with malice aforethought, shall unlawfully kill any person within this State shall be guilty of murder. Murder is distinguished from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide.
"Article 1141: The punishment for murder shall be death, or confinement in the penitentiary for life, or for any term of years not less than five.
"All laws and parts of laws in conflict herewith are hereby repealed.
"The fact that the present law defining murder divides the same into two degrees, to wit: first degree murder and second degree murder; and the fact that such definitions of murder or divisions of murder are creating complications in the trial of those charged with murder, creates an emergency," etc.
It is clear from the whole Act referred to, and especially from the third section or paragraph thereof, that it was not the intention or purpose of the Legislature to repeal the law constituting what has heretofore been known as second degree murder without, at the same time, substituting another penalty for that offense. The third section of this Act clearly shows what was intended to be done by the Legislature, — simply to change the name of murder in the second degree *Page 633 to murder and fix the punishment for such offense. It is true that if this cause were reversed and sent back to the lower court for another trial, appellant would have the right to demand to be tried under the penalty fixed by the old law, as the penalty there fixed was a less penalty for the offense committed by him than the one now fixed by the Act of the Thirty-third Legislature; but this fact would not entitle him to have his case reversed by this court nor dismissed by the trial court. See arts. 15, 16, 17, and 19, Revised Penal Code, 1911. Also Roberts v. State, 17 Texas Crim. App., 148; Gill v. State, 30 Texas Crim. App., 514; Ezzell v. State, 29 Texas Crim. App., 521; Walker v. State, 7 Texas Crim. App., 245; Simms v. State, 8 Texas Crim. App., 230; Myers v. State, 8 Texas Crim. App., 321.