We discuss only one question urged in the motion for rehearing. The court did not in his charge define malice aforethought, nor tell the jury that punishment could not be assessed at more than five years unless the killing was upon malice aforethought. The trial judge was not apprised by any objection to the charge that appellant was complaining of such omission. Nevertheless appellant urges that this court ought to consider the omission because in Chapter 274, Acts 40th Leg. (1927) Regular Session, page 412, (Vernon's Ann. P. C. of Texas, arts. 1256-1257B), it is provided that in all cases of murder the court shall define "malice aforethought" and apply that term by appropriate instructions to the facts, and tell the jury that the punishment could not be more more than five years unless the killing was actuated by malice. It was expressly held in Scott v. State, 114 Tex.Crim. Rep.,26 S.W.2d 263, that the act of the 40th Legislature referred to did not repeal articles 658, 660 and 666, C. C. P., which requires objection to the charge to be made in writing at the time of the trial.
The indictment charged that appellant did "unlawfully with malice aforethought voluntarily kill" deceased. Under all the formalities required by the statute appellant entered a plea of guilty. In Aills v. State, 114 Tex.Crim. Rep., 24 S.W.2d 1097, accused urged the same delayed complaint presented by appellant. In the opinion on rehearing *Page 320 in that case we said: "Appellant earnestly insists that the charge of the trial court was fundamentally erroneous for the reason that same did not expressly refer to or submit to the jury that the killing must be upon malice aforethought. The indictment charged that the murder was upon malice aforethought. Appellant pleaded guilty, and thus admitted all the material allegations of the indictment as well as the statutory elements of the crime charged. Bennett v. State,98 Tex. Crim. 661, 267 S.W. 987; Gipson v. State,86 Tex. Crim. 364, 216 S.W. 870; Williams v. State,86 Tex. Crim. 366, 216 S.W. 881."
Under a plea of guilty the trial judge would not ordinarily think it necessary to charge upon the question of "malice aforethought," and if appellant thought it pertinent the court's attention should have been called to the matter at the time of the trial by proper written objection as required by articles 658, 660 and 666, C. C. P.
It is vigorously insisted that because appellant was in a highly nervous and excited state of mind at the time of the killing this tended strongly to show that the killing was not upon malice, and therefore the failure of the court to give the instruction relative to "malice aforethought" was calculated to injure the rights of appellant and therefore that the statute requiring objections to the charge to be made at the time of trial should not apply. We doubt that appellant's legal proposition is sound, but do not discuss it because it seems not applicable. It may be conceded that appellant was excited and highly nervous at the time of the killing, but it by no means follows that the killing was not upon malice aforethought. If the state of mind referred to was not produced by "adequate cause" — as known under the old law — the killing would have been regarded as upon malice aforethought. Appellant became angry because of a very trivial matter; he aggravated this condition of mind by using intoxicating liquor; he went to a store and tried to rent a 30-30 Winchester carbine, ostensibly to go deer hunting, and refused another make of gun because he was not familiar with its operation; a new gun of the kind he wanted was in the store, rental of which was refused; he tried at another place to borrow a gun of the kind he wanted; failing in this he returned to the first store and purchased the new gun; he then proceeded to the store in which the parties at whom he was angry worked, and killed three men as fast as he could operate the gun.
Under the plea of guilty and the facts in the present case it does not occur to us that a failure of the court to charge upon "malice aforethought" could or might have resulted in any injury to appellant.
The motion for rehearing is overruled.
Overruled. *Page 321