Court of Civil Appeals of Texas, 1891

Callahan v. State

Callahan v. State
Court of Civil Appeals of Texas · Decided October 17, 1891 · White
30 Tex. Ct. App. 275; 17 S.W. 257; 1891 Tex. Crim. App. LEXIS 74

Callahan v. State

Opinion of the Court

WHITE, Presiding Judge.

This appeal is from a conviction of murder in the first degree, with the penalty assessed at a lifetime imprisonment in the penitentiary. The charge of the court to the jury, while it properly defines “express malice,” fails and omits to define “malice aforethought.” “A charge of the court in a trial for murder which omits to define ‘malice’ or ‘malice aforethought,’ the 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., 200; Boyd v. The State, 28 Texas Ct. App., 137; Childers v. The State, 13 S. W. Rep. 650; Ainsworth v. The State, 29 Texas Ct. App., 599; Washington v. The State, 16 S. W. Rep., 652. For this error in the charge of the court the judgment must be reversed and the cause remanded for another trial.

Reversed and remanded.

Hurt, J., absent.

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