Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 316
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316 BUSTER V. THE STATE. [Term of
Opinion of the Court.
Johnson & finger, for appellant.
N. G. Kittrell, for State.
MOORE, J. The court was not required, by the facts of this
case, to instruct the jury on the law applicable to homicide
below the grade of murder. The charge given by the court, as
it seems to us upon a general consideration of it, presented the
distinction between murder in the first and murder in the second
degree correctly, and with such reasonable clearness and
applicability to the evidence as the necessities of the case
required. But as it is unnecessary to do so, we do not propose
giving the charge such full and thorough examination as would
enable us to say whether it is critically and precisely accurate in
every particular. Indeed, it may be, and probably is, in some
of its clauses, if not to some extent slightly inaccurate, too loose
and indefinite in its phraseology to be commended as a model
for a charge in cases of so grave a character as the present.
The indictment charges that the act from which death ensued
was done by the parties indicted, " feloniously, willfully, and of
" their express malice aforethought." The verdict of the jury
is in the following words: " We, the jury, find the defendant
' guilty as charged in the indictment, and assess his punish.
"ment to be hung by the neck until dead."
It is insisted that this verdict will not warrant a judgment.
In the case of Holland v. The State (38 Texas, 474), the
court has unquestionably decided that it will. The indictment
in that case charged the defendant ' with deliberate and pre"meditated
murder." And the court say: "The verdict of
' the jury, as was said by Justice Roberts, in Slaughter v. The
" State, 24 Texas, 410, is a literal compliance with Article 626
" Criminal Procedure (Pasehal's Digest, Article 3090). The ap"pellant
was charged with murder in the first degree, and the
"jury found him ' guilty,' and assessed the punishment pre"scribed
for that offense. There can be no doubt or ambiguity
in the verdict, and it is fully sufficient to support the judgment
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/324/: accessed April 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .