Perry v. State

Citations

• 44 Tex. 473

Syllabus

<p>1. Express malice in an indictment for murder is sufficiently charged by the words “with malice aforethought.”</p> <p>2. Verdict.—A verdict for murder in the first degree is not vitiated by its containing a clause fixing the penalty of death.</p> <p>3. Variance.—This court will not consider the word “freedman,” following the name of the deceased in the indictment, as forming part of the name of deceased, when the question was not raised below, and where the same addition follows the name of the accused.</p> <p>4. Burden op proof in criminal cases.—In criminal cases the burden of proof is not on the defendant in the sense understood in civil cases; the reasonable doubt extends to the entire case, and the presumption of innocence must be overcome by the prosecution before a conviction can be had.</p> <p>5. Charge of court.—Held error to instruct the jury, on a trial for murder, “ that the law implies malice in case of unlawful killing by means calculated to produce death, and in such case the burden of proof is on the defendant, if he would reduce the offense to a lower grade than murder in the second degree.” The burden of proof is never cast upon the accused in the sense that the State is at any time relieved from proof of the facts constituting any degree of criminal offense.</p> <p>6. Same.—An instruction to the jury upon a case of a conflict brought on by the accused, giving only the law applicable if the conflict had been brought on with intent to kill, is erroneous; the failure to instruct upon the law had the conflict been brought on for any other purpose might convey to the jury the impression that the conflict had been brought on with intent to kill.</p> <p>7. See facts in which it was held that the definition of murder in the second degree was not sufficiently given to the jury.</p>