
    Sallie Wallace v. The State.
    1. Infanticide.—If a woman, with asociate and deliberate mind, before or after the birth of her child formed the design to take its life, and after the parturition was complete and the child born alive and in existence she executed her design and took its life, it was murder with express malice and in the first degree.
    2. Same. — But if the design to take the life of her child was formed and executed when her mind, by physicial or mental anguish, was incapable of cool reflection, and when she had not the ability to consider and contemplate the consequences of the fatal deed, and she conceived and perpetrated it under a sudden, rash impulse after the child had been wholly produced from her body and while it had existence, the crime was murder in the second degree.
    8. Same — Charge of the Court. — If in a case of this character the jury might have concluded from the evidence that the defendant took her infant’s life before its birth was complete, or that she caused its death by means which she used merely to assist her delivery, it was incumbent on the court to instruct for acquittal in the event the jury should so find.
    Appeal from the District Court of McLennan. Tried below before the Hon. L. C. Alexander.
    The indictment charged that the appellant, on March 21, 1879, and immediately after the birth of her female infant) strangled it to death by tying a string around its throat.
    About sunset on the day prior to the infanticide, the defendant, a negress, came to the house of Ctesar Williams, a negro who lived about six miles south of Waco in Mc-Lennan County. Neither he nor his wife knew the defendant, but she was given a bed and stayed all night with them. The indications of her pregnant condition were observed. The next morning she got up a id left the house, but returned in about half an hour, joined the family at breakfast, and afterwards went with her hostess to the cow-pen. After remaining there a little while, and complaining that she was sick, she went down to a branch about a hundred yards from the house. Caesar’s wife returned to the house from the cow-pen,-and in about half an hour observed the defendant’s head above the brush and bushes near the branch. About eight o’clock the same morning, she was seen on her way to her mother’s, some four or five miles distant.
    The next day Csesar’s wife and another negro woman found the corpse of a new-born infant near the branch where the defendant was seen the preceding morning. A domestic string was wound twice around its neck, and tied in a hard knot behind. The child was full-sized, with developed limbs and nails and a full head of hair. Near by was found an apron worn by the defendant when she came to Csesar’s.
    A physician who at the instance of the coroner made an examination of the corpse described the indications upon which he based his professional opinion that the child had been born alive and that it was strangled to death by the string, which he said was tied tight enough to have strangled a grown person. He observed no swelling of the face or head.
    Another physician, testifying for the defence, said that the signs of strangulation were swelling of the head and face, and that an absence of these signs would indicate that some other cause than strangulation occasioned the death. He further stated that there is no test enabling a medical expert to affirm that a dead infant had or had not been born alive. The utmost ascertainable from post-mortem observation is that the lungs had been distended with air either before or after birth, and by either a natural or an artificial process.
    C. Stubblefield, for the defence, testified that, about a week before the child was found, the defendant, who had been in his employ, informed him that he would have'to get another servant, as she was pregnant and would soon be confined, and wanted to go to her mother’s for that purpose. He further testified that he was aroused by the defendant before day on the 19th of March, who took him to her room, where another negro woman also slept. This other negress was subject to fits, and was in great pain, going through all manner of contortions. Witness quieted her and returned to his bed, but was soon awakened by cries of the defendant. Going again to her room, he found her greatly excited, and engaged in a violent struggle with the other woman, who was in another fit. The defendant was greatly frightened, and was exerting every effort to get loose from the grasp of the other woman. Witness finally released her, and she ran out of the door and fell down a flight of four steps to the ground. She left his employ the same evening. She had never attempted to conceal her pregnancy from him.
    The jury found the defendant guilty of murder in the second degree, and assessed five years in the penitentiary.
    
      Williams & Inge, for the appellant.
    
      Thomas Ball, Assistant Attorney-General, for the State.
   Clark, J.

If the defendant, with a sedate and deliberate mind, anterior or subsequent to the act of parturition conceived the design to take the life of her new-born infant, and in pursuance of such formed design did take its life in the manner alleged in the indictment, and such infant was wholly produced from the body of its mother alive, and was in existence by actual birth at the time the injuries causing death were inflicted, then she would be guilty of murder with express malice. If, however, the design to take its life was formed and executed when her mind, by reason of physical or mental anguish, was incapable of cool reflection, and she was not sufficiently self-possessed to consider and contemplate the consequences about to be done, but, yielding to a sudden, rash impulse, she conceived and perpetrated the fatal deed after the infant had been wholly produced from her body and had an existence by actual birth, then she was guilty of murder in the second degree.

We cannot say that the charge of the learned judge who presided on the trial below submitted these issues with that accuracy which usually characterizes his instructions ; nor do we feel an assurance that the jury may not have been misled by the general terms employed in defining the ingredients especially of murder in the second degree. Abstractly considered, the definition may not be inaccurate in ordinary cases, but in this case the better practice would have been to have submitted that issue substantially as above indicated. In this particular case, it is not well conceived how any legal provocation, excuse, or justification could arise, if the defendant strangled her own child after birth ; and the instruction was practically tantamount to an announcement that the defendant was guilty of murder in the second degree if she voluntarily and intentionally killed the child by the manner and means alleged.

We are also of opinion that the charge is materially defective in another respect. The issue of strangulation before birth was not submitted to the jury. It is true that among other definitions the jury were told that “in order that a child be in existence Icy actual birth, the parturition must be complete, and the body of the child must be expelled from the mother, and it must be alive ; so that the destruction of vitality in a child before it is completely born is not murder, under whatever circumstances committed.” But after applying the law to the particular case with reference to murder in the two degrees, it was incumbent upon the court to do likewise with reference to that phase of the evidence which might tend to the exoneration of the defendant. Presented in the form of an abstract proposition, it was not brought to the attention of the jury with that distinctness which the law demands. If they believed from the evidence that the defendant took the life of the deceased, by the means and in the manner alleged, yet the same was done before the child was completely born, "or if they believed from the evidence that the means used, and which resulted in death, were merely for the purpose of assisting delivery, in either event they should acquit.

. The instructions asked on circumstantial evidence should also have been given. Harrison v. The State, 6 Texas Ct. App. 42; Hunt v. The State, ante, p. 212.

The judgment is reversed and the cause remanded. Reversed and remanded.  