Benevides v. State

Citations

• 14 Tex. Ct. App. 378
• 1883 Tex. Crim. App. LEXIS 188

Syllabus

<p>1. Charge of the Court—Practice.—It is the duty of the trial court, in felony eases, to instruct the jury upon the law of the entire case, whether asked or not.</p> <p>3, Same—Murder—Evidence.—When, in a murder trial, the evidence is such as to denote murder of the first degree, or that the killing was upon express malice, or that it was done in the perpetration, or in the attempt to perpetrate, certain offenses named in Article 606 of the Penal Code, the trial judge should confine the charge to the case so made by the evidence,, omitting instructions applicable to all lower grades.</p> <p>8. Same.—The correct rule is, that, to relieve the trial judge of the duty of charging upon lower degrees of culpable homicide, the evidence must establish the highest degree; for if there be reasonable doubt it must be solved by the jury, and not by the court. This rule applies to all cases in which the greater includes the lower degree of culpability.</p> <p>4. Same—Reasonable Doubt.—When, in order to establish murder of the-first degree, the prosecution is forced to rely upon proof of express mollee, or that the killing was done in the perpetration or attempted perpetra» tion of robbery, the proof must establish one of these grounds so conclusively as to place the existence of the one or the other beyond a reasonable doubt.</p> <p>5. Same.—Burden of Proof is upon the State to prove, not only that the accused killed the deceased, but, when a conviction for murder of the first degree is sought, to prove that the killing was upon express malice, or in the perpetration or attempted perpetration of some one or more of the offenses specifically named in the said article of the Code.</p> <p>6. Same—Charge of the Court—Practice.—When a killing is not shown to have been done with express malice, or under such circumstances as would render the homicide murder of the first degree, it is incumbent upon the court to charge upon the lower degree or degrees indicated by the evidence.</p> <