I dissent from the views expressed by the majority of the court, upon the following grounds:
Appellant insists that the court should have charged, as to the meeting on Sanders' Branch, on Sunday night, of the defendant with Wilkerson and others, the principals in the homicide, that if said meeting was not for the purpose of hanging the Humphries, but merely for the purpose of co-operating with the officers to search for Patterson, the alleged murderer of Rhodes, to acquit appellant of being an accomplice in the homicide. His contention is based on the testimony of State's witness Arthur Greenhaw. I have examined the record carefully in this regard, and while Greenhaw puts said meeting about the 25th of March, and not on the 9th of April, as testified by Horton, still this was evidently the same meeting testified about by the State's witness Horton. The place and the parties named are the same, and it appears to be the only occasion in which State witnesses show that Ed. Cain was present and participated in any meeting. Horton says at this meeting that the proposition was made to hang the Humphries, and, from his testimony, that appears to have been the object of the meeting, while Greenhaw says that nothing was said abount hanging the Humphries, but the parties met there for the purpose of searching for Patterson; that they *Page 215 were there to act as a posse comitatus, and wait for the constable to come, and when he did not put in appearance they all went home; that, if the Humphries were mentioned there that night, he did not remember it; that nothing was said about killing the Humphries. It occurs to me that on this meeting, and what was done there that night, the State planted its case, as against the appellant, Ed. Cain, and inasmuch as it was shown that the object of the meeting was not with reference to hanging the Humphries, but merely to search for Patterson, that this theory of appellant's defense should have been presented for the consideration of the jury; and it makes no difference in this respect that the testimony emanated from a State's witness.
Appellant complains that the court failed to instruct on the doctrine of alibi, insisting that the State's case, as against appellant, was mainly based on the meeting of appellant with Joe Wilkerson and others, who were principals in the homicide, at Sanders' Branch, about the last of March or the first of April, and his participation and acts at said meeting, and that, as to that occasion, appellant introduced evidence tending to show that he could not have been there, as testified by Horton and Greenhaw, but was then at another and different place. It occurs to me that appellant's contention is sound; that there was but one meeting shown by the testimony on the part of the State between appellant and the alleged principals in the homicide, and the State's case depends on the acts and conduct of appellant on that occasion. He proposed, inasmuch as he was a stranger, that he and Horton would go into the Humphries' house and get them out for the mob, as they were not likely to be identified. True, there is other testimony tending to show appellant's guilty knowledge, but all this evidently was introduced to bear on the transaction proven against appellant as having occurred at Sanders' Branch. For instance, the evidence of Joe Wilkerson's two visits to appellant, without this background, would have no significance; and the same can be said of Smith's testimony in regard to the confessions made by appellant to him. It will be observed that the indictment charges that appellant was an accomplice to the murder of Jim Humphries, because he advised and agreed with Joe and Walter Wilkerson and John Greenhaw to commit said murder, and the case was put to the jury by the court on the single predicate that appellant advised and agreed with Joe Wilkerson to commit said offense. Now, the only evidence of any advice or aid to Joe Wilkerson in regard to said offense was at the meeting on Sanders' Branch. True, the record shows confessions made to Smith that he was in the conspiracy to hang the Humphries, but he could not be convicted on these confessions alone, and they suggest no advice or aid to Joe Wilkerson to commit said murder. In other words, if the testimony of the accomplice in regard to the meeting at Sanders' Branch, and what appellant did there, is eliminated from the case, there is no case against defendant, and all the other testimony tending to incriminate appellant was evidently introduced by the State for the purpose of corroborating the accomplice witness *Page 216 as to what occurred between appellant and the principal conspirators at the meeting at Sanders' Branch in regard to mobbing the Humphries. If this be true, then it occurs to me that if appellant introduced evidence tending to show that at the time when said meeting occurred he was at another and different place, and could not have been there, a charge on alibi was required. Mrs. Chambers testified for the State that appellant was absent two nights from his home, which was some twelve or fifteen miles from the place of the homicide, about the last of March or the first of April; the meeting having occurred about 12 or 1 o'clock at night. Appellant attempted to account for his whereabouts on both of said occasions, and proved by witnesses that he was at certain houses in his immediate neighborhood, and at such time as rendered it reasonably impossible that he could have been at the meeting on Sanders' Branch. This testimony certainly has a tendency to meet the State's case on this question of presence at the alleged meeting on Sanders' Branch, and raises the issue of alibi, and I think the court should have instructed on that subject. It is no answer to this proposition to say, as said by the majority of the court, "that if the court had selected the meeting in the woods, and applied the doctrine of alibi to that particular occurrence, it would have been trenching upon dangerous ground," etc. The proof alone points to this meeting in the woods on Sanders' Branch as the State's case against appellant; and, besides this, he requested a charge on this particular phase of the case, and, of course, he could not be heard to complain. I understand the doctrine as announced by this court to be that where the defense of alibi is relied upon, and there is evidence tending to establish such issue, it is the duty of the court to instruct the jury on the subject. See White's Annotated Penal Code, section 1280, and authorities there cited; and, for late decisions on question, see Padron v. State, 41 Texas Criminal Reports, 548.
Appellant insists that the case should be reversed because of the failure of the court to give a charge properly defining "malice aforethought" and "express malice." I copy all the court said on that subject, as follows: "Every person, with a sound memory and discretion, who shall unlawfully kill any reasonable creature in being within this State, with malice aforethought, either expressed or implied, shall be deemed guilty of murder. All murder committed with express malice is murder of the first degree. `Malice aforethought' is a term used in law to designate the wicked and mischievous intent with which a man willfully does a wrongful act, and it is to be inferred from acts committed or words spoken. Express malice exists where a murder is committed with sedate, deliberate mind on the part of the murderer, and in pursuance of a formed design to kill the person killed. The mind of the murderer need not be entirely free from excitement in order to bring it within the meaning of the terms `sedate and deliberate;' for, if it be in such condition as to admit of reflection upon the character of the act, then it is sedate and deliberate, within the meaning of the *Page 217 law." "Malice aforethought" is a term, under our law, which is distinctly applicable to murder and denotes the state of mind in which this most heinous of all offenses is committed. This term is of very ancient origin, sometimes called "malice prepense" or "malitia precogitata." It is treated by Coke and Hale, and was the subject of several English statutes. See the subject discussed in 3 Steph. Hist. Crim. Law Eng., pp. 40-56, inclusive; Steph. Crim. Law, p. 384; 1 Bish. Crim. Law, p. 429. Mr. Bishop suggests that "malice aforethought" means something more than malice. However the term was derived, as far as we are concerned it is an integral part of our law, pertinent to and definitive of the offense of murder. It has been held that an indictment which lacks the allegation that the homicide was committed with malice aforethought is bad. See McElroy v. State, 14 Texas Crim. App., 236; Cravey v. State, 36 Tex.Crim. Rep.. It is also held that the charge of the court in a trial for murder must contain the definition of "malice," and that the giving of a definition of "express malice" will not cure the omission. See Crook v. State, 27 Texas Crim. App., 242. The jury in every case, under our statute, is required to find the degree of murder, and the court is required to give a charge to the jury defining the offense as applied to the facts proven. This means no more than that the court is to give the rules of law by which the jury are required to measure the offense. So far as we are advised, it is conceded that the terms "malice" and "malice aforethought" have a technical meaning not understood by the ordinary juror, and that consequently it is necessary for the court to define this term so that the jury may understand it. There does not appear to be any great difficulty in defining the term, and our courts have gone a long way in approving definitions of "malice" and "malice aforethought." Harris v. State, 8 Texas Crim. App., 90; Martinez v. State, 30 Texas Crim. App., 129; Harrell v. State,39 Tex. Crim. 204. Still it would appear that some apt definition is required. That most frequently employed is as follows: Malice is the intentional doing of a wrongful act without just cause or excuse, and denotes a heart totally devoid of social duty and fatally bent on mischief. We take it that any definition that substantially embodies the elements of malice as above stated would be a sufficient compliance with the law, in the charge given. But does the charge here given contain the substantial elements of the definition? The court tells the jury that "malice" "is a term used in law to designate the wicked and mischievous intent with which a man willfully does a wrongful act, and it is to be inferred from acts committed or words spoken." This is not as good a definition of the term as was used in Hayes v. State, 14 Texas Criminal Appeals, 330, and in that case Judge White held the definition insufficient. The case quotes the charge as follows: "Malice aforethought is the voluntary doing of a wrongful act, with the intent, means, and ability to accomplish the reasonable and probable consequences of it." This definition of "malice aforethought," say the court, is not correct. "Under it a party may commit a killing which would *Page 218 be manslaughter only. The voluntary doing of an unlawful act, with the intent, means, and ability to accomplish the reasonable and probable consequences of it, would be manslaughter, if it was the result of sudden passion and upon an adequate cause, or it might apply as well to aggravated or simple assaults, or in fact any other felony or misdemeanor known to the Code, if the same is dependent upon act and intent, and which is not dependent for its criminality upon the existence of malice aforethought. `Malice aforethought' means something in itself, and can not be a condition only which is equally applicable to most offenses other than murder." And in Cahn v. State, 27 Texas Criminal Appeals, 738, Judge Wilson, speaking of the charge of the court on malice, says: "The definition given in the charge is not correct. There may be a settled purpose and intention to seriously injure or destroy another, and yet no malice may exist in the mind of the person entertaining such purpose and intent." In Crook's case, 27 Texas Criminal Appeals, 198, the charge of the court is not given, but the court say: "In all trials for murder it is the imperative duty of the court to instruct the jury as to the meaning of `malice' or `malice aforethought.' It is fundamental error to omit such instruction, and a definition of `express malice' will not cure the omission." In Martinez v. State, 30 Texas Criminal Appeals, 129, the term "`malice' is defined as a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken." In connection with this definition, "express" and "implied" malice were also fully defined. This was held sufficient. But I know of no case in which the charge here given, which attempted to define "malice," has been held a correct legal definition of that term. As stated before, this is not even as good an attempt at a definition as contained in the Hayes case, supra. The court said, "`Malice' is a wicked and mischievous intent with which a man willfully does a wrongful act." Now, there are many acts that are wicked and mischievous which are not malicious; and there are many things that can be done willfully, and which are wrong, which are not done with malice aforethought, although with a wicked and mischievous intent. An act may be wrongful, but not unlawful; may be wicked and mischievous, but not done with malice. Indeed, this attempt at a definition is worse than no definition at all. "Malice aforethought" has a meaning, and the authorities hold that the jury must be told what this meaning is, in every trial for murder, and it occurs to me that we have gone quite far enough in upholding charges on this subject. Stevens v. State, ante, p. 154. But the charge in that case was far more complete than this, and contained the essential elements of the definition. As stated, even if the learned judge had given a sufficient charge on "express malice," it would not help out an abortive definition of "malice" or "malice aforethought." But the attempt to define "express malice" can only be cured by recurring to a former part of the charge. The judge says that murder upon express malice is where one with a sedate and deliberate mind kills another. *Page 219 He does not say in this connection that the killing must be unlawful, and we are compelled to go back to his definition of murder, which defines that offense as an unlawful killing, etc., to help out the definition of "express malice." This method of arriving at a proper definition is of doubtful propriety. I do not understand why in this instance the precedents should have been abandoned, and a new endeavor made to define the term "malice aforethought." Nor can I agree to the contention that, inasmuch as the facts of the case only suggest a murder upon express malice, therefore it was not necessary that the court define the term "malice aforethought" at all. To hold it was merely necessary to instruct the jury that if they believed Wilkerson and others hanged deceased Jim Humphries, and that defendant theretofore advised or agreed to the same, to find him guilty of being an accomplice to murder upon express malice was all that was required, would be to usurp the functions of the jury, and would be tantamount to authorizing the judge, after hearing the facts, if he was convinced that it was murder in the first degree, to instruct the jury to go out and find the defendant guilty of murder in the first degree. Yet, as I understand the record, this is what we are requested to do in this case. This is not in consonance with the spirit and genius of our law, which leaves to the jury the right to pass upon the facts, under appropriaate instructions for their guidance in measuring the guilt of the defendant on trial. It may be important that those who engage in mobs, and thus take the law in their own hands, be brought to punishment, but I can not lend my sanction to the overthrow of the landmarks which have been set up for the protection of the innocent; and I believe it is of much more importance that the rules which safeguard jury trials and tend to secure a fair and impartial administration of the law be preserved.
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.] *Page 220