This appeal is from a judgment of conviction of murder in the second degree, the punishment being assessed at fifteen years in the penitentiary.
It appears from the record that a previous trial of this case had been had in the District Court, which resulted in a mistrial.
Defendant made an application for a continuance based upon the absence of four witnesses, two of whom under process of court were brought into court and testified in the case. The other two were Martha Eeese and P. M. Teeter, Sr. Martha Eeese was under attachment as a witness in the case. She had testified at a previous trial which resulted as aforesaid in a mistrial. Her testimony was in substance “that she was present at the time the deceased, Jeff Meachum, was shot at the festival—at the time of the shooting and some time afterward; that immediately before the shooting she saw there was a difficulty, and thinking her brother was involved in the difficulty she ran up to the edge of the platform, and just as she got to the edge of the platform she saw a man shoot, and immediately after the shooting the man ran off with a pistol in his hand, and she ran after him believing he had shot her brother. She pursued him until he ran behind a brick kiln, said brick kiln being about fifty yards from where the shooting occurred; that the reason she followed him was that she thought that her brother was shot and she wanted to identify the man that did the shooting.”
The witness Teeter’s testimony was desired by the defendant simply to prove the reputation for truth and veracity of Frank and Dick Wilburn, two of the principal State’s witnesses against him. In qualifying the bill of exception reserved by the defendant to the overruling of his application for a continuance the learned trial judge says with regard to the witness Martha Eeese: "The court did not believe her evidence probably true, having heard her on a former trial. She being an un*604■educated negress, who has since left the county and hearing of the case, and the large number of witnesses who were present and many ■other parties having been shown to have been present, nothing was disclosed to show that anybody else had seen any such occurrence as she claimed to have seen, and that she, mid the shooting and excitement, could not have pursued an armed man in order to have identified bim, satisfied the court that her evidence was not true, and to postpone the case on that ground would have been manifestly an injustice to the State and the large number of witnesses who were present.”
We do not concur in the sufficiency of the reason given by the learned judge as to the testimony of this witness. At the former trial, with this testimony before them, .the jury failed to convict the defendant. Some of them might have believed her testimony was probably true, and thus the mistrial occurred. We can not say, when viewed in the light of all the other testimony in the case, that it is improbable or untrue. In the excitement of the. occasion this uneducated negress, in her anxiety about and efforts to ascertain the welfare of her brother, might have seen what the other parties not similarly situated with her, and also in a high state of excitement, did not see. These other witnesses differ as to the identity of the party who did the shooting, and one of the main questions in the case was as to whether the defendant was the party who did the shooting or not.
We think the court erred in overruling the application for a continuance based upon the want of the testimony of the witness Martha Reese.
• We call attention to another error which has not been noticed or commented upon by appellant’s counsel in his argument or brief in the case, but which is apparent of record. In his otherwise elaborate charge to the jury the learned trial judge nowhere defines the meaning ■of the terms “malice” and “malice aforethought.”
A charge of the court in a trial for murder which omits to define “malice” and “malice aforethought,” essential elements of murder, is erroneous, and such error is not cured by the definition of express and implied malice. Crook v. The State, 27 Texas Ct. App., 198; Boyd v. The State, 28 Texas Ct. App., 137; Willson’s Crim. Stats., sec. 1061; and Childers v. The State, ante.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
Judges all present and concurring.