Calvin Anderson v. The State, 31 Tex. 440

Caldwell, J. — We are of opinion that there is no error in the record, and that the judgment must be affirmed. The indictment is for murder; verdict, murder in the second degree. The charge of the court is elaborate, and, taken as a whole, quite accurate.

In making the distinction between murder of the first and second degree this paragraph occurs: “If you believe the defendant killed the deceased in a sudden and unexpected fight without previous malice, and with no time for deliberation, and no previously-formed design, then he will be guilty of murder in the second degree.” This is objected to, as calculated to mislead the jury, and preclude them from finding a verdict of manslaughter. Taken in connection with the facts, we do not so regard it.

Malice is an essential ingredient of murder, and, whenever found to exist, there can be no such offense as manslaughter. The terms, “without previous malice” and “no previously-formed design,” are used above to negative the idea of express malice, and to direct the mind of the jury to implied malice, such as the law presumes from a sudden killing without “adequate cause,” which would reduce the offense to manslaughter. This view is more evident from the succeeding paragraph of the charge, which lays down the law of manslaughter with great liberality to the prisoner. Judgment aeeirmed.