H. M. Pharr v. The State, 7 Tex. Ct. App. 472

Winkler, J. We are of opinion there are errors of a material character prejudicial to the rights of the defendant in the charge of the court. The charge of the court on homicide in self-defence was substantially the law of homicide on previous threats, which was not the law of the case as made by the testimony adduced on the trial.

The. defence, if any was proved, was a killing on appearances of pressing and imminent danger, which, if true, would have justified the defendant to act, and have required him to act with the utmost promptness; and this view of the case should have been presented to the jury in the charge of the court. Marnock v. The State, decided by this court at the present term, and authorities there cited, ante, p. 269. By the charge as given, the defendant was restricted to acting only on real danger, and not on the appearances of danger as they presented themselves to him at the time.

Again : the court charged, in effect, that if the jury believed that the unknown white man described in the indictment died from the effects of a gunshot wound inflicted on him by the defendant as charged in the indictment, and that such killing was unlawful as in the charge explained, and was committed in the perpetration or in the attempt at the perpetration of robbery as before explained, then the jury were instructed to find the defendant guilty of murder in the first degree.

The defect in this portion of the charge is that it ignores malice, the indispensable requisite in all murder; without malice, either express or implied, there can be no murder. Again : it is not homicide committed in the perpetration or attempt at the perpetration of robbery .which is by the Code murder in the first degree, but it is all murder committed in this manner that constitutes the crime murder in the first degree.

If a murder — that is, a homicide — was committed in the perpetration or in an attempt at the perpetration of robbery, and having the necessary ingredient of malice, whether express or implied, such killing would be murder in the first degree. Penal Code, art. 606 ; Tooney v. The State, 5 Texas Ct. App. 163.

And again: the charge does not place and keep before .the minds of the jury the distinction between murder generally oil express malice, and murder committed in the perpetration or attempted perpetration of robbery, so as to prevent the jury from confounding the two views of the case in determining the question of the guilt or innocence of the defendant under the proofs adduced.

And again: after the court had given the jury an appropriate charge on circumstantial evidence, a qualification, to say the least unnecessary, was added, to this effect: “ The same degree of certainty, however, is not required, except as to the intent with which the act is done, when the State offers in evidence, without objection on part of defendant, the admissions or confessions of the defendant, provided the same show that the defendant admitted or confessed that he did the act of killing.” We deem it important to notice another error in the charge, which is as follows': “While it is the duty of the jury to weigh and consider all the statements of the defendant that have been offered in evidence, they may act upon and believe such part or parts of the same as they believe, from all the facts and circumstances in evidence, to be entitled to credit or worthy of belief, and may disregard such part or parts as they deem unworthy of belief.” This portion of the charge was calculated to neutralize a previous portion, which was substantially correct, to this effect: “ When the admissions or confessions of a party are introduced in evidence by the State, then the whole of the admissions or confessions are to be taken together, and the State is bound by them unless they are shown to be untrue by the evidence ; such admissions or confessions are to be taken into consideration by the jury as evidence, in connection with all the other facts and circumstances of the case.” It must be borne in mind that the whole defence of the defendant rested on the fact that he had said he had killed the deceased, but did it in self-defence, coupled with that other portion of the same statement drawn out on the cross-examination of the witness who testified to it, and which, coming as it did, was legitimate testimony to go to the jury, to the effect that when the deceased said he would kill the defendant he was attempting to get his pistol, when the defendant raised his gun and fired.

Now, all this may have appeared to the court to he a mere pretence and fabrication ; but if so, the court should not have conveyed to the jury, by any word in the charge, or in any other manner, what his impressions really were as to any part of the testimony.

It seems to us that by that portion of the charge which permitted the jury to consider the testimony of the statements of the defendant they were authorized to believe so much of his statement as admitted the killing, and reject such portions as set up his justification for the act of killing, and which arose out of the testimony introduced by the State. “When part of

an act, declaration, or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, — as when a letter is read, all other letters on the same subject between the same parties may be given. And when a detailed act, declaration, conversation, or writing is given in evidence, any other act, declaration, or writing, which is necessary to make it fully understood or to explain the same, may also be given in evidence.” Code Cr. Proc., art. 751.

It is the province of the judge to deal with the law of every criminal case, but he is not at liberty to express any opinion as to the weight of evidence, and it is beyond the province of a judge sitting in criminal causes to discuss the facts. Code Cr. Proc., arts. 677, 678. “The jury are the exclusive judges of the facts in every criminal case, but not of the law in any case. They are bound to receive the law from the court, and be governed thereby.” Code Cr. Proc., art. 676 ; Stuckey v. The State, decided at the present term, ante, p. 174.

The sufficiency of the indictment is called in question by the appellant’s counsel, and we are referred to Tooney v. The State, 5 Texas Ct. App. 163, in support of the argument; the argument being that the indictment is not sufficient to support a conviction for murder committed in the perpetration or attempt at the perpetration of robbery, that fact not being specially averr.ed in the indictment. There is a clearly definable difference between the two indictments, and Tooney’s Case does not sustain the argument.

The indictment in the present case is believed to be sufficient as one for murder in the ordinary form. As to the motive or inducement which influenced the killing, that is more a subject of proof than pleading. For the above errors in the charge of the court, the judgment is reversed and the cause remanded. Reversed and remanded.