Ed. Shelton v. The State, 34 Tex. 662

Ogden, J. The appellant in this case was tried and convicted of the murder of his own child, about one year old. The verdict .of the jury was for murder in the first degree, and the judgment entered accordingly; from which judgment the defendant has appealed. The indictment is in the usual form for indictments for murder, and we think it sufficient to sustain the charge; and whether the judgment is for murder in the first or second degree must depend upon the proof, and not upon the peculiar wording of the indictment.

There is no special error pointed out in the charge of the court as given to the jury, and in the absence of a special assignment we are inclined to regard the charge as correct. We are also of the opinion that the court did not err in refusing the charges asked by defendant, as a portion of them had already been given in the general charge, and others were objectionable as propositions of law. Neither can we regard the exceptions as well taken.

The opinion of a medieali, man as to the cause of the death of the child, and also as to whether the neck of the child was broken before or after death, was properly admitted'by the court to go to the jury. Indeed, there are many cases, as in this, where there was no one present at the death hut the deceased, unless it was the defendant, and where it might he wholly impossible to prove the cause and manner of the death, excepting through the aid of soieiico; when, with the aid of the scientific experience of medical men, the whole facts might become as manifest as though rehearsed by an eye witness.

The cross examination of the wife of defendant was not to make her testify against her husband, bat simply to test the truth of what she had stated when called for the defense. We think this fully authorized under the Constitution and laws, and we see no error in the ruling of the court in this respect. But we think there was error in the refusal to grant a new trial in this case.

The verdict of the jury was for murder in the first degree, and the judgment condemned the defendant to be hung- The verdict and judgment in this case can be maintained only upon one of two hypotheses, Cither that the defendant killed the deceased with express malice, or that he intentionally committed that crime by means of torture; and we are unable to discover evidence to establish either hypothesis. “It is said by high authority that “ express malice.exists only when the party evinces an intention to commit the crime.” (3 Bulstrode’s R., 171.) In the record of this ease we discover, in the defendant, a hatred and malice toward the deceased, which is rarely equaled in brutality; hat that hatred was more characteristic of the brute than of the malicious deliberate murderer, and indicated rather the unfeeling and wanton cruelty of a wretch than the deliberate and premeditated malice of the murderer.

There was no proof of threats or previous attempts to kill, and there was no direct and positive proof that the defendant did kill the deceased. But, from his previous acts of torture and cruelty, and his immediate connection with the deceased, we are not prepared to say that the jury was not warranted in coming to the conclusion that the deceased came to her death at the hands of the defendant. But we fail to discover, in the evidence, that deliberation of purpose and act. or that malicious intent to kill which would characterize his crime as murder in the first degree, under our law.

It true that there was an-abundance of proof of acts of brutal torture, but in all that, we can see only an intent to produce pain and suffering, and not to kill.

It was the duty of the jury, under the charge of the court, to give the defendant the benefit of any reasonable doubt, and we think that the whole testimony suggests a reasonable and strong doubt whether the defendant did, with malice aforethought and express, murder the deceased under such circumstances as in our law would authorize the taking the life of the defendant. ■ And as the defendant was found guilty of murder in the first degree, and by the verdict condemned to be hung, we . think the motion for a new trial should' have been sustained by" the lower court; and for this error the judgment is reversed and the cause remanded. , Reversed and remanded.