
    JOHNSON v. STATE.
    (No. 7968.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1924.
    Rehearing Denied June 25, 1924.)
    1. Criminal law <©=>781 (6) — Refusal to require belief of confession beyond reasonable doubt ' before conviction not error.
    Refusal to instruct jury that they must believe defendant’s confession to be true beyond reasonable doubt before they could convict held not error.
    2. Criminal law <©=>736(2) — Voluntary character of confession not jury issue, in absence of evidence thereon.
    Voluntary character of confession is not a jury issue, in absence of evidence raising question as to whether .same was voluntary or not.
    3. Criminal law <©=537 — Evidence of finding incriminating evidence pursuant to information given by accused held admissible.
    - In prosecution for murder, in that defendant broke railway switch lock and threw switch, resulting in derailment of train and death of fireman, admission of testimony of witness that he found broken switch lock at certain point held not error, in view of additional testimony that he found same in pursuance of information given him by accused.
    4. Criminal law <©=>537 — Statements in nature , of confession held admissible, whether made after arrest or not.
    ■ Statement by defendant charged with murder, growing out of wrecking of train, as to place at which broken switch lock would be found, which was found to be true and conduced to show his guilt, held admissible under Code Cr. Proe. 1911, art. 810, whether made while under arrest or not. .
    
      5. Criminal law <®=>719(f) — Argument of counsel that railroad was back of prosecution growing out of train wreok’held properly disapproved.
    In prosecution for murder growing out of wrecking of railroad train, argument of defendant’s counsel that railroad was back of prosecution, seeking to avoid liability for damage suits unjustified by the evidence, helé properly disapproved by court.
    6. Homicide <§=»129 — Indictment for murder resulting from wrecking of train must charge malice aforethought.
    Indictment under Pen. Code 1911, art. 1229, for murder resulting from the breaking of a switch lock and throwing switch in front of a passenger train not charging that murder was done with malice aforethought, helé fatally defective. y ,
    On Motion for Rehearing.
    7. Homicide <g=l I — -Proof of malice against particular individual unnecessary, in prosecution for murder growing out of wrecking of train.
    State, in prosecution under Pen. Code 1911, art. 1229, for murder growing out of wrecking of train, though required to charge malice aforethought, is not required to prove malice was entertained against any particular individual.
    8. Criminal law <®=3l7§ — Abandonment of count of indictment after jeopardy has attached concludes state.
    Abandonment by the state of a particular count of an indictment after jeopardy has attached 'concludes state as to that phase of offense.
    9. Indictment and information <s=o187 — Conviction, under indictment insufficiently charging murder, for lessor offense defined by same statute, held warranted.
    Under an indictment under Pen. Qode 1911, art. 1229, for murder growing out of wrecking of a passenger train, which is insufficient for failure to charge malice aforethought, defendant may nevertheless be convicted for lessor offense also defined by that statute.
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Josh Johnson was convicted of murder, and he appeals.
    Reversed and remanded.
    R. M. Smith and R. E. Bozeman,, both of Quitman, and J. W. Lambert, of Alba, for appellant.
    C. L. Black, -Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., all of Austin, for the State.
   DATTIMORE, J.

Appellant was convicted in the district court of Wood county of murder, and his punishment fixed at 99 years in the penitentiary.

Prom the evidence it appears that the appellant was in the employ of the Texas Pacific Railway Company as a section hand, ahd that about the date alleged in the indictment he broke a switch lock and threw a switch upon the track of said railroad company, and shortly thereafter the Sunshine Special passing along said line, ran into the broken switch, and the engine was derailed, killing a fireman.

We will dispose of some preliminary propositions before coming to what we consider to be the question involved in this case. No error was committed in the refusal on the part of the trial court to tell the jury that they must believe the confession of the accused to be true beyond a reasonable doubt before they could convict; nor do we think it erroneous for him to refuse to apply the rule of malice aforethought to the act or acts of the accused in breaking the switch lock.

Trial courts are not required to submit the voluntary character of confessions as an issue to a jury, except there be testimony raising the question as to whether same was voluntary or not.

As we understand the bill of exceptions complaining of the introduction of the testimony of Mr. Horton that he found 'a broken switch lock at a certain point, same presents no error, in view of the fact that he testified that he found same at said place in pursuance of information given him by the accused. A statement of the accused while under arrest, which is found to be true, and which conduces to show his guilt, as was the finding of the broken switch lock in the instant case, would be admissible under article 810 of our Code of Criminal Procedure, whether such statement be made while under arrest or not.

We find nothing in the record to justify the argument of appellant’s attorney to the effect that the T. & P. Ry. Co. were behind this prosecution in order to avoid liability for damage suits. This being true, it was not error to instruct such attorney to desist from arguing such fact.,

The decisive point involved in this case is the sufficiency of the indictment. Article 1229 of our Penal Code is as follows:

“If any person shall willfully place any obstruction upon the track of any railroad, or remove any rail therefrom, or displace or interfere with any switch thereof, or in any way injure such road, or shall do any damage to any railroad,, locomotive, tender or car, whereby the life of any person might be endangered, he shall be .punished by imprisonment in the penitentiary not less than two nor more than seven- years. If the life of any person be lost by such unlawful act, the offender is guilty of murder.”

The count of the indictment herein, upon which conviction was had, reads as follows:

“And the grand jurors, aforesaid, upon their oaths aforesaid, do further present in and to said court that Josh Johnson on or about .the 24th day of November, A. D. 1922, and anterior to the presentment of this indictment, in the county of Wood and state ’of Texas, did then and there unlawfully and willfully interfere with, turn, and change a switch on the track of a railroad there situated, to wit, on the track of the Texas & Pacific Railroad, so as to wreck and thereby 'causing the wrecking of a railway train on the track of the said Texas & Pacific Railroad, as aforesaid, then and there, thereby causing the death of Charlie Cox, who was then and there the locomotive fireman on the locomotive of the train so wrecked; against the peace and dignity of the state.” ,

This wás the second counf. The first count was similar save that it alleged that the appellant “with his malice aforethought” killed and murdered the deceased by the doing of those things set out in the second count. A motion in arrest of judgment, based on the proposition that the count submitted was fatally defective in that it omitted the allegation that the killing was “upon malice aforethought,” was overruled. A special charge defining malice aforethought and applying the ■law of same to the facts of the case was refused. AVe are thus confronted with the proposition 'as to whether an indictment for murder in this state must allege that the killing was with malice aforethought, and, if not, then does the use of the word “willful,” as applied to the acts of the accused in this indictment, amount to the legal equivalent of malice aforethought. ‘ ' -

Murder under our statute is defined by article '1140, Vernon’s Ann. Pen. Code 1916, as follows:

“Every person with sound memory and discretion who, with malice aforethought shall unlawfully kill any person within this state shall be guilty of murder.”

In McElroy v. State, 14 Tex. App. 235, there was raised only the question that the indictment, having omitted the words “malice aforethought,” was insufficient, and that a motion in arrest of judgment should have been sustained. This court tersely states the rule:

“ ‘Malice aforethought’ are technical words, for which, in an indictment for murder, there can be no equivalents or substitutes.”

This announcement has never been questioned in any subsequent decision. In Sharpe v. State, 17 Tex. App. 486, this court, speaking through Judge White, says that for three and one-half centuries it has been almost uniformly held by tribunals among English speaking people that an indictment for murder punishable by death is sufficient if it charges that the homicide was with malice aforethought, and from Bishop’s Criminal Procedure is quoted approvingly the following: “It is agreed on all hands,” says Mr. Bishop, “that the words ‘malice aforethought’ are essential in an indictment for murder.” So in the case of Hamlin v. State, 39 Tex. Cr. R. 605, 47 S. W. 663, this court said:

(“The grounds of appellant’s objection are, as we understand it, that our statute makes murder upon express malice a distinct offense, and a -homicide by poisoning a distinct offense, and it is not necessary that the latter contain, as an essential element, the charge of malice aforethought. This is not the rule. Erom time immemorial, a charge of poisoning, as one of its distinctive elements, contains the charge that it was done with malice aforethought.
Unless it was so done, it is not murder. A killing by poisoning may be either negligent or purely accidental homicide. The rule at common law required that an indictment for poisoning contain the allegation ‘malice aforethought.’ See Whart. Horn. § 735. In 1 Hale, P. C. p. 455, we find: ‘He that wilfully gives poison to another, that hath provoked him or not, is guilty of Willful murder. The reason is because it is an act of deliberation, odious in law, and presumes' malice.’ The same rule has been followed in this state. See Tooney v. State, 5 Texas Crim. App. 163. We would, moreover, observe in this connection, that certainly appellant cannot be heard to complain, because, if his contention be true, it was only necessary to prove homicide by poisoning; but the indictment superadded to this, and the court instructed the jury accordingly, that there must be both poisoning and malice aforethought. If the court had failed or refused to submit a charge requiring the jury to believe that the homicide was committed with malice aforethought, it would, have been error.”

In Jones v. State, 53 Tex. Cr. R. 136, 110 S. W. 742, 126 Am. St. Rep. 776, appears the following :

“It has also been held that, although an indictment charged the killing was with express malice aforethought, a conviction under it will not be disturbed, because the pi-oof showed not only such malice, but also that the killing was done in the perpetration of burglary or robbery. Mitchell v. State, 1 Texas Crim. App. 193, and Wilkins v. State, 35 Texas Crim. Rep. 525. Under this statute, it has also been held that when the indictment charges a murder committed in the perpetration, or attempt at the perpetration of arson, rape, robbery or burglary, and though such murder is ipso facto murder in the first degree, it is characterized by malice aforethought as much as is murder committed upon express malice; and hence, since without malice aforethought no homicide can be murder, in all such cases it is essential that the indictment should allege that the killing was upon malice aforethought.”

This would seem to suffice as authority for the conclusion reached by us that the indictment herein is insufficient, but we note that in Mr. Willson’s Criminal Forms 511-516, charging murder by poisoning, torture, starving, etc., the allegation that same was with “malice aforethought” is laid down in each instance. Our poisoning statute (articles 1077-1079, Pen. Code) provides that the administering of poison with intent to kill shall be a felony, and if death result within a year same shq.ll be murder. In Rupe v. State, 42 Tex. Cr. R. 491, 61 S. W. 933, discussing murder under this statute, this court says:

“Therefore it must he alleged in a case of murder by poisoning that the hilling was done with malice aforethought.” ■

In Roach v. State, 8 Tex. App. 490, occurs the following:

“Malice is as much the essential ingredient of murder by poisoning, or robbery, or any other of the specific modes, as it is of murder by violence done to the person.”

Article 1071, of our Penal Code, forbids abortion, and article 1074, Id., states that if by abortion the death of the mother be caused it will be murder. The principle involved is exactly analogous to that before us. Forms laid down by Mr. Branch under the latter statute include, first, the statement of the acts done by the accused, but conclude with the charge that “in the manner and by the means aforesaid” did with “his malice aforethought,'MU and murder said. * * * ”

We have considered this question from what seems to us every possible angle, and have concluded that, in an indictment in this state attempting to allege murder, it must always be charged that it was upon malice aforethought, and hence the learned trial judge erred in not sustaining the motion in arrest, of judgment. It would follow that the bill of exceptions complaining of his refusal to give a charge defining and applying the law of malice aforethought to the facts of this case would also present error," based in our opinion upon his belief that the indictment need not allege that the killing was upon malice aforethought.

For the errors mentioned, the judgment will be reversed, and the cause dismissed.

On Motion for Rehearing.

HAWKINS, J.

The state has filed a motion for rehearing, and a persuasive argument in connection therewith, asserting that our original opinion strips article 1229 of the, Penal Code of any meaning, and leaves it with no effective field of operation. We think the effect of the opinion is exaggerated. If the state had proceeded to trial under the first count of its indictment, wherein it was alleged that the killing occurred .by the use of the same means as charged in the second count, but with the additional allegation that it was done with “malice aforethought,” the present controversy would not have arisen. There can be no question that when the Legislature enacted article 1229 it created, as it had the unquestioned right to do, a new criminal offense. After ^xing the penalty under ordinary circumstances it could have provided further that, in the event the life of any person be lost by any unlawful 'act, so denounced that the punishment should be the saíne as m mmrcler, or specifically have fixed any punishment thought proper, just as in robbery (article 1327, Penal Code), an increased punishment is provided where the offense is perpetrated by the use of a firearm or other deadly weapon; or as in swindling (articles 1421 and 1427, Penal Code), after defining the offense, it is provided that the punishment shall be the same as in theft, or in receiving stolen property (article 1349, Penal Code) the punishment shall be the same as for theft thereof. But when the Legislature announced that, if a life be lost as a result of any unlawful act covered by article 1229, the party should be deenfed guilty ■ of “murder,” we think it beyond our authority to hold that the Legislature intended to abrogate one of the essential features of murder, to wit, “malice aforethought,” as it applied to a killing so occurring, and we adhere to our original views that to charge murder under such circumstances it is necessary to allége that the killing was done with “malice aforethought.”

In an indictment charging murder by any of the means specified'in article 1229, supra, in which indictment there is embraced an allegation that the homicide was committed with malice ^forethought, the state is not embarrassed by the necessity oí proving that malice was entertained against any particular individual. On this subject, we quote from the opiniofi of this court in Tooney’s Case, 5 Tex. App. 189:

“ ‘The design formed must be to kill the deceased, or inflict some' serious bodily harm upon him. This would indicate that the malevolence must be directed towards the deceased as its object. * * * This design is not confined to an intention to take away the life of the deceased, but includes the intent to do any unlawful act which may probably end in depriving the party of life. Roscoe’s Cr. Ev. 1707; Stark on Cr. Pl. 711. This specific malevolence towards the person killed may be embraced in such utter and reckless disregard of life as shows a man to be an enemy to all mankind — as, when a man resolves to kill the next man he meets, and does kill him; or shoots into a crowd wantonly, not knowing whom he may kill. 4 Bla. Com. 200.’ McCoy v. State, 25 Texas, 33.
“Malice express consists in the actual and deliberate intention unlawfully to take away the life of 'another, or do him great bodily harm.. Implied or constructive malice is not a fact, but is an inference or conclusion founded upon the particular facts and circumstances of the case as they are ascertained to -exist. McCoy v. State, 25 Texas, 33; 2 Stark on Cr. Pl. 711.”

The first count in the indictment, that which charged murder, having been abandoned after jeopardy attached, the state is concluded as to that phase of the offense. Touching the second count, the effect of the opinion is to eliminate from the statute as a substantive offense that part in which it is said, “If the life of any person be lost by such unlawful act, the offender is guilty of murder.” As very pertinently argued by state’s counsel, there might be a. prosecution for murder under the general statute, and such was the charge In the abandoned first count. Under the statute in question (article 1229) the acts charged against appellant in the second count would constitute an offense punishable by confinement in the penitentiary for a period of.not less -than two nor more than seven years.

Instead of ordering a dismissal of the present prosecution as was done in the original opinion, the motion for rehearing is granted to -the extent' that the judgment is reversed and the cause remanded. With this modification, the state’s motion for rehearing is overruled. 
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