Dionicio Villareal v. The State, 26 Tex. 107

Bell, J. We are of opinion that, under the circumstances of this case, the court below did not instruct the jury with sufficient accuracy and distinctness as to the legal principles by which they were to be governed in coming to a conclusion upon the case. It is made the duty of the District Judge, in all cases of felony which" are tried before him, “ to deliver to the jury a written charge in which he shall distinctly set forth the law applicable to the case.” (Code of Criminal Procedure, art. 594.) In the present case the evidence was conflicting.

The testimony of Juan Rodriguez differs Very materially" from that of the other witnesses, as to the circumstances which transpired at the door of the house of Perez, and along the street, immediately before the homicide was committed. This testimony, in connection with all the other evidence in the case, made it the duty of the Judge to instruct the jury distinctly as to the degrees of murder, and to define what the law means by express malice and implied malice, in such manner that a jury of ordinary intelligence would be capable to comprehend the distinction between the two kinds of malice.

The Judge told the jury that if the murder was committed with express malice, then they Would so find by their verdict; but if they believed that the prisoner was guilty of the murder of Marcello Perez, yet entertained a reasonable doubt whether such murder was committed with express malice or not, then they should give the prisoner the benefit of such doubt, and find him guilty of murder in the second degree.

The Judge evidently intended to charge the jury with the most perfect fairness towards the prisoner, because he proceeded further to define manslaughter, and to tell the jury that if they entertained a reasonable doubt whether the killing was murder in the ..‘second degree or manslaughter, then they should give the prisoner the benefit of such doubt and find him guilty of manslaughter.

The term “express malice,” is purely technical; and it is not to be supposed that a jury will be able to determine whether a murder is of the first or second degree -by being told that murder committed without express malice is of the second degree. We are also of opinion that the court below erred in exchrding the testimony which was offered to show that the house of Perez was a house of ill-fame, or prostitution.

The counsel for the prisoner recited that they offered this testimony for the purpose of ■explaining the object, or purpose of Villareal in going to the house; and we are of opinion that the testimony ought to have been admitted. The judgment of the court below is reversed, and the cause remanded for another trial. Reversed "and remanded.