The offense is murder; the punishment confinement in the penitentiary for 20 years.
A former appeal of this case is reported in 3 S.W.2d 449.
In defining malice the court charged the jury as follows:
"Malice in a legal sense denotes a wrongful act done intentionally without just cause or excuse. The intentional doing of an unlawful act in such a manner and under such circumstances as that the death of a human being may result therefrom is malice. In this connection you are instructed that one who deliberately uses a deadly weapon in such a reckless manner as to evidence a heart regardless of social duty and fatally bent on mischief, as is shown by firing a pistol in thedirection of where he knows a human being is standing, and insuch proximity to him as that, if struck by such shot, seriousbodily injury or death may result, would in law constitutemalice."
That portion of the charge we have underlined was objected to on the ground that it was a charge on the weight of the evidence.
It was in evidence from the state's only eye witness that appellant fired three shots. Two of the shots struck deceased, one in the side and the other in the arm. The third shot was fired in the air' at an angle of about 45 degrees. At the time the shots were fired appellant was standing on the running board of an automobile while deceased, who was holding on to an open door on the opposite side of the car with one foot on the ground and the other on the running board, was facing appellant. Appellant was maudlin drunk and deceased was also in an intoxicated condition. When the first shot was fired deceased said: "Look out, Simmons, or you will hit me." After the third shot was fired the state's witness ran to appellant, took the pistol away from him and threw it away. Deceased said: "I am shot." Appellant said: "Let's get a doctor, I'll get a doctor. Bud, did I shoot you? I didn't shoot you, did I, Bud?" No motive for *Page 55 the killing was shown. On the contrary it appears that appellant and deceased were friends. Immediately prior to the shooting they were conversing in friendly tones. No witness saw appellant point his pistol at deceased. The only flash of a pistol seen by the state's witness was not towards deceased, but upward at an angle of 45 degrees. Testifying in his own behalf appellant declared that he knew nothing concerning the immediate transaction resulting in the death of deceased; that he had become maudlin drunk; that a limb of a tree had struck him on the head when his automobile had struck a tree. The fact that the parties had run into a tree and that appellant had been struck on the head by a limb was testified to by the state's witness. The law of temporary insanity was submitted in the charge of the court. On the former appeal a reversal was predicated, among other things, on the failure of the court to submit a charge on the law of negligent homicide. We quote from the opinion as follows:
"If the pistol of appellant was fired with no apparent intention to kill, but under circumstances making apparent the danger of causing the death of the person killed or some other, the issue of negligent homicide is present in the case."
On the present trial a charge covering the law of negligent homicide was submitted to the jury. The facts raising the issue of negligent homicide show that appellant fired the pistol in the direction of where he should have known that deceased was standing, and that deceased was within 4 or 5 feet of appellant at the time.
The court in effect instructed the jury that the firing of the pistol by appellant under the conditions shown by the record would constitute malice. This was an invasion of the province of the jury. Under such instruction they were deprived of the right to determine from all of the facts and circumstances in evidence whether appellant was impelled by malice when he fired the fatal shots. It is true that the jury may infer malice from the use of "a deadly weapon in such reckless manner as to evince a heart regardless of social duty and fatally bent on mischief," as is shown by firing a pistol in the direction of where one knows a human being is standing under such conditions that if such person is struck serious bodily injury or death may result. Banks v. State, 85 Tex. Crim. 165. On the other hand, where there is evidence from which the jury might find that there was no apparent intention to kill the jury should be left at liberty to conclude that there was no malice. The identical facts held by this court to raise the issue of negligent homicide *Page 56 were relied upon by the state to show malice. Hence it would seem that the effect of the charge on malice was to destroy the efficacy of the charge covering the law of negligent homicide. The question as to whether appellant's act in firing in the direction of deceased constituted malice was for the jury and not for the court. We think it is obvious that the charge was on the weight of the evidence and that under the facts disclosed by the record appellant was prejudiced thereby. Article 658 Cow. C. P. provides:
"In each felony case the judge shall, before the argument begins, deliver to the jury a written charge, distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury."
In Vernon's Annotated Code of Criminal Procedure of Texas, Volume 2, Note 91 under Article 658, many authorities are cited in support of the proposition that under said article "the charge should be entirely free from intimating any opinion as to the weight of the evidence."
For the error discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING