
    ROBERTS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 2, 1913.
    On Motion for Rehearing, May 7, 1913.)
    1. Homicide (§ 146) — 1Trial—Instructions.
    Malice as a predicate for murder in the second degree may be implied, but not merely from an unlawful killing; so that where there was evidence of manslaughter, negligent homicide, and self-defense, an instruction that implied malice would be presumed from an unlawful homicide is erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 265-271; ' Dec. Dig. § 146.]
    2. Homicide (§ 340) — Appeal—Reversible Error.
    In a homicide case, where there was evidence of manslaughter, negligent homicide, and self-defense, a charge that malice is an ingredient of the offense of murder in the second degree, which may be implied from the fact of an unlawful killing, is reversible error, where coupled with other charges differentiating murder in the first and second degree and informing the jury that, where an instrument reasonably calculated to produce death is used and does produce it, malice aforethought will be implied when the killing is not done in self-defense. .
    [Ed. Note. — For other cases, see . Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    3. -CRIMINAL Law -(§ 475) — Evidence—Expert Evidence.
    In a prosecution for homicide with a pistol, opinion evidence by an expert as to where the balls entered and left the body of deceased is inadmissible, where it is shown that the expert did not view the body until a day after the killing during which time cotton had been stuffed into the wounds thus enlarging them.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. § 1063; Dec. Dig. § 475.]
    4. Criminal Law (§ 338) — Evidence—Admissibility.
    In a prosecution for homicide, evidence that there had be'en a good deal of gambling among negroes and Mexicans in the vicinity in which accused lived some time prior to the killing was irrelevant and improperly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753. 755, 756, 787, 788, 801, 855; Dec. Dig. § 338.]
    5. Witnesses (§ 386) — Impeachment—Con- . tradiction — Predicate.
    A witness in a homicide ease, who testified that deceased threatened accused, and that he communicated those threats to accused, cannot be impeached by proof that, while talking- to the county attorney and others on the night previous to testifying, he did not inform them of the threats; there being no predicate for such impeachment, and it not being shown that the witness was examined as to all the occurrences of which he was cognizant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1226, 1227; Dec. Dig § 386.]
    On Motion for Rehearing.
    6. Criminal Daw (§ 1093) — Appeal—Bill of Exceptions — Sufficiency.
    In a prosecution for homicide with a pistol, a bill of exceptions, reciting that while the witness was upon the stand, after it had developed that he had not seen the body of deceased until the day after the homicide, and there had been no evidence introduced that the condition of the wounds was then the same as immediately subsequent to the shooting, he was permitted to testify over accused’s objection as to the manner in which the balls entered and left the body of deceased, and that an opinion based on such condition Vas immaterial and prejudicial, sufficiently presents for review the question of the competency of such evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    7. Homicide (§ 338) — Appeal—Prejudicial Error.
    In a prosecution for homicide, the admission of evidence as to gambling and crime among the negroes and 'Mexicans in accused’s vicinity about a year before the offense is prejudicial error, even though the testimony did not connect accused with such lawlessness.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.]
    Appeal from District Court, Hill County; C. M. Smithdeal, Judge.
    Jim Roberts was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    Collins, Cummings & Shurtliff, of Hills-boro, and Williams & Williams, of Waco, for appellant. G. E. Lane, Asst. Atty. Gen., for the State.
    
      
       Por other cases see game .topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

The court submitted the case to the jury upon the issues of murder in the first degree, second degree, manslaughter, and self-defense. The jury acquitted of murder in the first degree -and convicted of murder in the second degree.

With reference to malice, among other things, the court gave this charge: “Malice is always a necessary ingredient of the offense of murder in the second degree. The distinguishing feature, however, so far as the element of malice is concerned, is that in murder in the first degree malice must be proved to the satisfaction of the jury beyond a reasonable doubt as an existing fact, while in murder in the second degree malice will be implied from the fact of an unlawful killing.” Applying the law to the case, the court thus instructed the jury: “Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, on or about the time charged in the indictment with his implied malice aforethought, with a pistol, said pistol being a deadly weapon or instrument reasonably calculated and likely to produce death in the mode and manner of its use, with the intent to kill, and not in self-defense, did shoot and- thereby kill the said Rufus C. Weiss, as charged in the indictment, you will find him guilty of murder in the second degree and assess his punishment at confinement in the penitentiary,” etc. Objections were urged to both charges with reference to the matter of malice and the constituent elements under the charges as given as to-murder in the second degree. It is not a correct proposition that murder in the second degree will be implied from the fact of an unlawful killing. It may be implied; but, in order to constitute murder in the second degree, malice will not be implied as a matter of law from an unlawful killing. Implied malice may exist, or will be the subject of implication or conclusion where murder in the first degree is not shown to exist, and where the facts do not mitigate, excuse, or extenuate or justify the homicide. Malice as a predicate for murder in the second degree may be implied, and the jury might be justified in arriving at the conclusion that the killing was upon implied malice, where manslaughter, negligent homicide, and self-defense are not part and parcel of the evidence or of the case. Manslaughter is an unlawful killing; negligent homicide is also an unlawful killing, and under some circumstances accidental homicide may be an unlawful killing. Therefore it is not correct to charge the jury that in murder in the second degree malice will be implied from the fact of an unlawful killing.

Following this definition, the court intensified this error by informing the jury that implied malice aforethought is where the killing occurred with an instrument reasonably calculated to produce death and does produce it in the manner and mode of its use-when this killing is not done in self-defense. This, taken in connection with the previous-charge of the court that malice will be implied from an unlawful killing, would justify and authorize the jury to find the killing upon implied malice aforethought, even though the facts should show it was manslaughter, or any other inferior degree of a culpable killing. Under the definition given, the jury was -justified in convicting appellant of murder in the second degree upon implied malice if they should find that the killing was unlawful from any standpoint, and in the application of the law to the facts this matter is not correctly presented, but the jury is left to conclude that although the killing might have been manslaughter or otherwise unlawful, yet it would be implied malice because it was unlawful, this being intensified, by the court only qualifying malice aforethought when the homicide was justified in self-defense. Appellant was given 40 years in- the penitentiary for murder in the second degree. What effect this may have had upon the jury is conjectural, but the verdict of the jury is not in any sense conjectural. This charge may have tended to enhance the punishment above the minimum of five years. This error is of sufficient- importance to require a reversal of this judgment.

Another question is suggested by a bill of exceptions, which recites, in substance, that while Dr. Mahaffy was testifying for the state, and after it had been developed that he had not seen the body of deceased until the next day after the homicide, and although there had been no evidence introduced that the condition of the wounds in the deceased’s body was the same at the time said witness saw same as they were shortly after they were inflicted, the witness was permitted to testify, in substance, that the wounds indicated that the bullets entered from the rear. It is also recited in the bill, in this connection, that inasmuch as a day’s time had elapsed between the killing and the examination of the deceased by the witness, and that the witness had no evidence that the wounds were in the same condition at the time of the examination as when inflicted, and further that it had been shown, and would be more fully shown during the trial, that cotton had been stuffed ih the wounds which had changed their condition and which had enlarged the same so that the wounds in front appeared larger than the wounds in the back of the body. This bill does not present the matter as clearly from the facts as should have been. If the wounds had been enlarged in front by treatment of any sort, either by insertion of cotton or by a surgical operation, we are inclined to hold that the testimony of Dr. "Mahaffy, so far as this phase of the case is concerned, would not be permissible. If. wounds have been in any way tampered with before the expert or other witness undertakes to testify as to the condition of the wound, then it would be improper for the witness to testify or give his opinion as to whether the shots entered from the front or rear. It is permissible to elicit evidence that the ball entered from the rear and passed out in front, or in front and passed out at the rear; but this would not be so where, after the infliction of the wound and before the witness undertakes to describe it, said wound had been so tampered with as to change its original appearance or condition. It seems to be generally thought, and stated as a general rule, that the exit of the wound is larger than its entrance, yet this does not seem to be the invariable rule, but where the wound made by the supposed exit of the ball has been tampered with and enlarged by that means, then such testimony ought not to be permitted to go to the jury.

Another bill recites that, while appellant was testifying in his own behalf on cross-examination, the county attorney was permitted to elicit from him that there were quite a number of Mexicans and negroes in his section of the country during the fall of 1911, the year before the homicide,- and that there was a good deal of gambling going on in that neighborhood at that time. It would not be relevant testimony that a year prior to this homicide there had been a good deal of gambling in that country among negroes and Mexicans. This may have been and doubtless was prejudicial to appellant’s case before the jury. He ought not to have been held responsible in this homicide case for such gambling transactions among negroes and Mexicans.

Another bill recites that Edgar Johnson testified for the defendant, among other things, that the deceased had made threats against, the life of defendant, which he (witness) had communicated to the defendant. While this witness was on the stand, the county attorney asked him if, while talking to the witness Frazier and other counsel on the night previous to his testifying, he had told either of those gentlemen about any threats which he had heard deceased make concerning the defendant. Various objections were urged, but they were overruled, and the witness was required to testify that on the previous night the county attorney had talked with him and during that conversation said Johnson had not informed him and the other counsel about any threats he had heard deceased make concerning defendant. This testimony was illegal and improperly admitted in the case of Hyden v. State, 31 Tex. Cr. R. 401, 20 S. W. 764, this question was before the court, and it was held that where a witness did not state at a former trial or on former occasions the same fact that he states at the pending trial, it is not a contradiction when there is no inconsistency between his statements on the two occasions, or when his attention was not called on the prior occasion to the new matter about which he speaks at the pending one. In support of this cases were cited, among others, Lewis v. State, 15 Tex. App. 647. In order to contradict a witness in regard to this matter, it should or ought to be shown in some way that the matter was called to his attention. The mere fact that the witness fails to tell everything connected with a matter about which he testifies at the pending trial does not afford grounds for impeachment, unless brought within the rules above announced. A mere failure to state all of the facts is not necessarily a contradiction. As was said in the Hyden Case, supra: “The strongest light in which the matter can be regarded in favor of the prosecution is that Mrs. Hy-den omitted to state on the examining trial the facts inquired about in the predicate laid for her impeachment. Her testimony on the final trial and the evidence - omitted on the examining trial are entirely harmonious, and are in no way contradictory. On the examining trial she was not questioned with reference to the evidence inquired about in relation to which she was sought to be impeached on the final trial. Had she, on such examining trial, been interrogated in relation thereto', and failed or refused to testify in regard to it, or had then denied it, or had been cautioned to tell all she knew in. reference to the matters then under investigation, and had failed or refused to do so, the impeachment would have been permissible. But, on the other hand, if she had on such examining trial testified as she did on the final trial, and at the time of the proposed impeachment, or if she had not on such examining trial been interrogated in reference to that matter, and had not been requested specially to state all the facts within her knowledge touching such matters, she could not be so impeached.” The Hyden Oase lays down the correct rule, and has not been questioned by any subsequent decision in this state. In fact, it seems to have been followed wherever the question has been before the court. The rule is a correct one, whether it had ever been decided or not.

There are some other .matters presented for revision, among them the refusal to continue the case and newly discovered evidence. These questions involve quite a lengthy part of the record; but, as they will not arise upon another trial as here presented, we deem it unnecessary to discuss them.

The judgment is reversed, and the cause is remanded.

On Motion for Rehearing.

At a former day of the term .the judgment herein was reversed. Messrs. Wear &. Frazier, counsel for private, prosecution for the state, have filed a motion for rehearing attacking the opinion of the court in several respects.

It is contended the court was wrong in holding that the testimony of Dr. Mahaffy was objectionable; among other things, it is stated the bill of exceptions does not show, at the time the objection was made, any evidence had been offered in reference to a change in the condition of the wound by cotton having been stuffed into it, etc. The bill is as follows: “While the witness Dr. H. A. Mahaffy was upon the witness stand as a witness for the state, and after it had been developed that he had not seen the body of the deceased until the next day after the homicide, and although there had been no evidence introduced that the condition of the wounds in the deceased’s body was the sáme at the time said witness saw same as they were shortly after they were inflicted, the said Dr. PI. A. Mahaffy was permitted to testify as follows,” etc. After setting out his testimony in the bill in regard to the matter, the bill further recites that “appellant objected to the questions and answers so made by the said witness, as above set forth, on the ground that it had been developed that a day’s time had elapsed between the killing and the examination, of the deceased by the said witness and said witness had no proof that said wounds were in the same .condition .at. the time.of such examination as they were when inflicted, and on. the further ground that it had been shown, and .would be shown, and it was thereafter testified that the condition of said ■ wounds had been changed, that is, that cotton had been stuffed in his .wound and had changed the condition of the same and had enlarged, the same, and the said witness based his opinion in part upon the fact that the wounds in front appeared larger to him than the wounds in the back of said body, and that an opinion-based upon such condition rVas immaterial and prejudicial,” etc. We are of opinion that this bill of exceptions does show and recite, as a matter of fact, that Dr. Mahaffy had •not seen the body of the deceased until the day after the homicide, and it does recite there had been no evidence introduced that the condition of the wound on the body of the deceased was the same at the time witness saw it as it was shortly after the wound was inflicted, and it does recite as a fact that it was testified that the condition of the wound had been changed; that is, that cotton had been stuffed in the wound and had changed the condition of it and enlarged-it, etc. We quote the record to show the real condition of the bill of exceptions. We are of opinion this sufficiently presents this question, and if upon another trial the matter is again thus presented, that part of Dr. Mahaffy’s testimony with reference to his opinion based on the condition of the wounds as set forth in the bill should not be permitted to go to the jury. Experiments, as originally stated, are permissible, but the experiment must indicate the condition' of the things at the time the experiment is made as conformable to the conditions at the time the thing happened about which the experiment is made.

It is contended the court’s opinion was wrong in holding the trial court erred in permitting testimony in regard to the fact that there was a considerable amount of gambling in appellant’s neighborhood among the negroes and Mexicans a year before this homicide. It is further claimed in the motion, if the testimony is not admissible, that “it was a matter so utterly immaterial, to wit, that there were Mexicans and negroes in the country that it could not prejudice or in any. way affect appellant’s rights.” The evidence introduced over objection'was that there was a great deal of gambling going on among the negroes and Mexicans in that country a year before the homicide. What appellant had to do with this, or why it should have been introduced against him, we do not understand. If it was utterly immaterial as contended by. counsel, then it may be asked, why was it introduced? It was put in for some purpose, arid unless appellant was in some way connected with it or it entered into his action with reference to this homicide, if immaterial so far as he was concerned, it was prejudicial; at least, .it was intended. to. operate in some, way against him or else the state would not have put it before the jury. It was. prejudicial. Lawless-nesses not immaterial when urged against an dccuse'd. It does affect him advéi’sely.

Another question is suggested in which it is contended the court was wrong in reference to the evidence of the witness Frazier. It is true that the opinion does not state the matter exactly as it should have been stated, for upon reading the opinion it seems there was some confusion as to which witness testified to certain facts, whether it was Johnson or Frazier. To remedy this matter and put it as the bill of exceptions shows, the following will be noted from the bill: “A. M. Ftazier, county attorney, while on the witness stand as a witness for the state, was ashed, ‘If Edgar Johnson, a witness who had testified for defendant, while talking to the witness Frazier, Judge W. 0. Morrow and Judge W. C. Wear, on the previous night, had told either of them anything about any threat that he had heard the deceased make concerning the defendant?’ Be it further remembered that the witness 'Edgar Johnson, a witness who had testified for the'defendant, testified that deceased had made threats against the life of defendant, and that he had communicated same to the defendant; that thereupon counsel for defendant objected to said question. propounded to the witness Frazier, and the answer sought to be elicited thereby, on the ground that no predicate was laid for that character of impeachment and that said testimony was hearsay, irrelevant, and immaterial, which objections were overruled by the court, and the witness was permitted to testify and did testify that the witness Edgar Johnson, on the previous night, while talking to said parties, had not told them a word about any threat he had heard the deceased make concerning the defendant.” Without taking up the exceptions, etc., and going further into this matter, this statement is- simply made to correct the original opinion, as it does not show clearly how the matter occurred. What we said before we adhere to in regard to this matter, so far as the legal conclusion is concerned. If it is sought to contradict Johnson by' Frazier, it was necessary that the matter be called to Johnson’s attention, under the rule in the Hyden Case, 31 Tex. Cr. R. 401, 20 S. W. 764. That decision lays down the correct rule. This is noticed simply to make the original opinion conform more correctly to the bill of exceptions, and state the matter exactly as it occurred, and to remove any doubt as to the position of the two witnesses Frazier and Johnson in their testimony.

Another contention in the motion is that the opinion reversing the judgment is erroneous in holding the charge of the court on murder in the second degree deficient. We again repeat the criticised charge as follows : “Malice is always a necessary ingredient of the offense of murder in the second degree,- The distinguishing feature, however, so- far as the element of malice is concerned, is that in murder in the first degree malice must be proved to the satisfaction of the jury beyond a reasonable doubt as an existing fact, while in. murder in the second degree malice will be, implied from the fact of an unlawful killing.” This is not the law. Malice will not he necessarily implied from an unlawful hilling. Manslaughter is an unlawful killing, and an intentional one, yet malice is not implied. Negligent homicide is an unlawful killing, but malice, is not implied. Murder in the second degree has been frequently defined, and it is unnecessary to review the authorities. While it is true in another portion of the charge the court drew the distinction between murder in the first and second degrees, and, among other things, stated that express, malice constituting murder in the first degree must be proved, and where the facts do not show mitigation or extenuation or justification, a homicide will be murder in the second degree. But when the court comes to apply the law to the case and instruct the jury as to their guidance upon this subject, the charge uses the following language: “Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt- that the defendant,, on or about the time charged in the indictment with his implied malice aforethought, with a pistol, said pistol being a deadly weapon or instrument reasonably calculated and likely to produce death in the mode and manner of its use, with the intent to kill, and not in self-defense, did shoot and thereby Mil the. said Rufus O. Weiss, as charged in th.e indictment, you will find him guilty of murder in the second degree,” etc. Looking at the definition in the face of this application of the law, this charge is not sufficient. The court had charged the jury that malice necessary to constitute murder in the second degree loill he implied from an unlawful hilling.

In another portion of the charge drawing or seeking to draw the distinction between the two degrees of murder, the court informed the jury that murder in the second degree would be constituted where there were no mitigating or extenuating circumstances or justification. Now applying the law, he leaves the matter before the jury that a killing-under any circumstances'except in justification or self-defense would constitute murder in .the second degree. ■ The charge would have been in much better condition, where the law is applied to the case, had the court left off the expression “and not self-defense” did shoot, etc. Having given this part of the charge, the jury should also have been instructed with reference to the other matters that might reduce the killing below murder in the second degree. The court having instructed the jury that malice aforethought, under "the'foregoing instructions, applied of necessity to the definitions given, would include manslaughter in his idea of malice aforethought. This is emphasized by the exception in the application of the law to the .case wherein the jury was instructed that if he killed in self-defense it would not be murder in the second degree. But it leaves the jury to conclude that if he killed under any other circumstances than self-defense under the foregoing instructions he would be guilty of murder in the second degree. Manslaughter is not included in the foregoing definition, but was in fact in the case. Now, if defendant killed under circumstances which would constitute manslaughter, it would not be murder in the second degree, and could not be malice aforethought. The court having charged the jury that malice will be implied from the fact of an unlawful killing, and then in applying the law to the case told them that under the foregoing instructions if he killed that it would be upon malice aforethought unless he killed in self-defense. Having submitted this matter in this manner to the jury, it was evidently erroneous. We refer to the Best Case, wherein Judge Ramsey laid down the correct and proper form. It is unnecessary here to quote from that opinion. See Best v. State, 58 Tex. Cr. R. 327, 125 S. W. 909. This matter was so thoroughly elucidated by Judge Hurt in Miles v. State, 18 Tex. App. 156, it is deemed unnecessary to discuss that question further. Judge Hurt, in his usual, able, and exhaustive manner, reviewed this question in that case. The writer does not care to add or try to add to or supplement his reasoning; in fact, it is .seldom the case, when Judge Hurt had given careful attention to a proposition and wrote upon it, that it would need further illustration or discussion. See, also, Branch’s Crim. Law, § 426, and cases as well cited in Branch’s Crim. Law, § 428. It has been held so often it is unnecessary to repeat it, that a charge is error which authorizes a conviction for murder in the second degree on a state of facts which would constitute only manslaughter. Miles v. State, supra, and Ray v. State, 46 Tex. Cr. R. 511, 81 S. W. 737. Again it is said, stating the circumstances, the absence of which authorizes the inference of implied malice, a charge should not ignore circumstances which mitigate or extenuate a homicide. Ellison v. State, 12 Tex. App. 581; Neyland v. State, 13 Tex. App. 549; Turner v. State, 16 Tex. App. 391; Wheeler v. State, 56 Tex. Cr. R. 550, 121 S. W. 166.

A review of these cases convinces us that appellant was correct and is entitled to a reversal of his judgment, and there is no substantial reason set out in the motion for rehearing why the former opinion should be set aside or the judgment affirmed.

The motion for rehearing is therefore overruled.  