Blocker v. State

ON MOTION FOR A REHEARING.

Willson, Judge.

In this case the appeal is from a conviction of murder in the first degree, the penalty assessed being confinement for life in the penitentiary.

At our last term at Tyler the cause was submitted on oral arguments and briefs for both parties, and we affirmed the conviction without delivering a written opinion. Counsel for defendant filed a motion for a rehearing and submitted the same upon oral argument and brief, and said motion was transferred to this branch of the court for decision.

It is strenuously insisted by counsel for the defendant that the judgment of conviction should be reversed because the trial court omitted to submit to the jury the issue and law of murder in the second degree. In our first consideration of the case our conclusion was that the evidence adduced on the trial did not present the issue of murder in the second degree, and that therefore the trial court did not err in omitting to instruct the jury as to the law of such issue. After a careful re-examination and reconsideration of the voluminous statement of facts, in the light of the able argument and briefs of counsel for the defendant, we entertain very grave doubts of the correctness of our conclusion.

It is a well settled rule that if from the evidence there is a doubt as to which of two or more degrees of the offense charged the defendant may be guilty, the law as to such degrees should be given in charge of the jury. It is only where there is no evidence tending to establish a particular grade of the offense that a charge as to such grade may be omitted. And in a murder case if, by any possible legitimate construction of the evidence, the jury might convict of murder in the second degree, the law of that degree must be given in charge to the jury. (Willson’s Cr. Stats., secs. 1064, 2337.)

In this case there is no direct evidence of express malice on the part of the defendant towards the deceased. It was not shown that the defendant entertained any grudge or any enmity whatever against the deceased, nor does the evidence disclose any motive actuating the defendant to commit the homicide. The only evidence of express malice consists in the character of the weapons used; the manner of their use; that the defendant was accompanied by another person armed with a gun; that defendant, in company with such other person, followed the deceased to the place of the homicide; and that after the killing the defendant and his companion precipitately fled from the scene. That the evidence sufficiently establishes express malice we do not question or doubt, but we are not prepared to say that there is no evidence from which a jury might not legitimately conclude and find that the homicide was upon implied and not upon express malice. No witness saw or heard what transpired between the parties at the very time of the killing. It is not known what words, if any,- passed between the parties, or what, if anything, provoked the killing. Deceased was armed with a repeating pistol, some of the chambers of which were found to be empty. Entertaining, as we do, a serious doubt of the correctness of our first view of the evidence, and of our conclusion that it did not demand a charge upon murder in the second degree, we shall grant the motion for a rehearing, set aside the judgment of affirmance, reverse the judgment of conviction and remand the cause for another trial.

Counsel for defendant earnestly and ably contend that in all prosecutions for murder in this State, without regard to what the evidence adduced may be, it is the imperative duty of the trial court to submit to the jury the issue and law of murder in the second degree. We have been profoundly impressed with the strength of the reasoning advanced in support of this position. Article 607 of oür Penal Code provides: eTf the jury shall find any person guilty of murder, they shall also find by the verdict whether it is of the first or second degree; and if any person shall plead guilty to an indictment for murder, a jury shall be summoned" to find of what degree of murder he is guilty; and in either case they shall also find the punishment.” This provision is imperative, and a verdict of guilty of murder, without specifying the degree of murder of which the defendant is found guilty, is a nullity. (Willson’s Cr. Stats., sec. 1051.) It unquestionably confers upon the jury the power to fix the crime in the second degree when it ought, under the law and the facts, to be fixed in the first. And a verdict of murder in the second degree will not be set aside upon the ground that the testimony showed the homicide to be one of murder in the first degree. (Monroe v. The State, 23 Texas, 227; Blake v. The State, 3 Texas Ct. App., 581; Parker v. The State, 22 Texas Ct. App., 105; State v. Lindsey, 19 Nevada, 47; Baker v. The State, 4 Texas Ct. App., 223; Powell v. The State, 5 Texas Ct. App., 234.) This power of the jury to find the degree is unrestricted, and can not be controlled or abridged by the charge of the court, or by the omission of the court to submit the issue of murder in the second degree.

It has been held, however, in this State that if the court does not instruct upon murder in the second degree, but the jury finds the defendant guilty of that degree, the conviction can not stand. (Taylor v. The State, 3 Texas Ct. App., 387; Garza v. The State, Id., 286.) The writer is inclined to the opinion that such a verdict must be received by the court and judgment entered in accordance therewith, and that it would operate as an acquittal of murder in the first degree. In accord with the writer’s view, it has been held in other States, under statutes similar to ours, that the court can not deprive the jury of their power and right to fix the degree by imperatively instructing them that, if they find him guilty, they must find him guilty of murder in the first degree. (Rhodes v. Com., 48 Penn. State., 398; Lane v. Com., 59 Penn. State, 375; Shaffner v. Com., 72 Penn. State, 61; Robbins v. The State, 8 Ohio State, 193; Beaudien v. The State, 8 Ohio State, 638; The State v. Lindsey, 19 Nevada, 47; The People v. Ah Lee, 60 Cal., 85; The State v. Dowel, 19 Conn., 387; Baker v. The People, 40 Michigan, 411; The People v. Williams, 73 Cal., 533; see also Whart. on Homicide, secs. 186, 198.) Such an imperative instruction is regarded as an unwarranted assumption of the province of the jury, and will vitiate a conviction of murder in the first degree.

We have found no authority, however, which directly holds that an omission to submit to the jury the issue and law of murder in the second degree, where the evidence conclusively shows murder in the first degree, presenting no facts from, which a jury might legitimately find murder in the second degree, will vitiate a conviction for murder in the first degree» In this State the decisions are numerous and uniform the other way, holding that where there is no evidence from which, by any possible legitimate construction, the jury could conclude that the homicide was murder in the second degree, the court may properly decline to submit to the jury the issuo and law of murder in the second degree. It was so held by lur Supreme Court in the early case of O’Connell v. The State, 18 Texas, 343. The rule laid down in that case has been followed by a long line of decisions. (Washington v. The State, 1 Texas Ct. App., 647; Taylor v. The State, 3 Texas, Ct. App., 387; Hubby v. The State, 8 Texas Ct. App., 597; Lum v. The State, 11 Texas Ct. App., 483; Neyland v. The State, 13 Texas Ct. App., 536; Davis v. The State, 14 Texas Ct. App., 645; Gomez v. The State, 15 Texas Ct. App., 327; Darnell v. The State, 15 Texas Ct. App., 70; Smith v. The State, 15 Texas Ct. App., 139; Rhodes v. The State, 17 Texas Ct. App., 579; Jackson v. The State, 18 Texas Ct. App., 586; Johnson v. The State, 18 Texas Ct. App., 385; Bryant v. The State, 18 Texas Ct. App., 107; May v. The State, 21 Texas Ct. App., 595; Henning v. The State, 24 Texas Ct. App., 315; Trimble v. The State, 25 Texas Ct. App., 631.) These decisions have been the law of this State for many years; have met with the tacit sanction and approval of the bar and the Legislature of the State. We shall adhere to them as the established law of the land in cases coming within their purview. We take occasion, however, to suggest to trial judges that they should be exceedingly cautious in murder trials in declining to charge upon murder in the second degree. Instances are comparatively rare in which such a charge may be properly dispensed with. It is only when there is no evidence tending to present that issue that such a charge may be safely omitted.

Opinion delivered January 16, 1889.

We have not discussed other questions of minor importance presented in the record, because they are of a character not likely to occur on another trial.

Upon the ground before stated the rehearing is granted, the judgment of affirmance is set aside, and the judgment of conviction is reversed, and the cause is remanded for a new trial.

Reversed and remanded.