Richarte v. State

White, J. In this case, the appellant was indicted for the murder of one Refugio Moreno, and was found guilty of murder in the first degree. There is a paper copied into the record as the charge to-the jury, but it seems never to have been filed. It has been repeatedly decided that no paper not bearing the file-marks-of the clerk will or can be considered as part of the record-, on appeal; and the rule with regard to the charge of the-court is that, “ when the court has charged the jury, the362 •charge should be handed to the clerk, who, before handing it to the jury, should put his file-mark upon it; and.the transcript, on appeal, should show the file-marks on the ■charge and on all other file-papers in the case.” Krebs v. The State, 3 Texas Ct. App. 348; Haynie v. The State, 3 Texas Ct. App. 223; Parchman v. The State, 3 Texas Ct. App. 225; Clampitt v. The State, 3 Texas Ct. App. 638 ; Thompson v. The State, 4 Texas Ct. App. 44; Long v. The State, 4 Texas Ct. App. 81; Hunt v. The State, 4 Texas Ct. App. 53 ; Dishong v. The State, 4 Texas Ct. App. 158; Doyle v. The State, 4 Texas Ct. App. 253; Hill v. The State, 4 Texas Ct. App. 559. Since the charge cannot be considered, because it never has been filed, it follows that the case must be reversed for want of a charge, the statute requiring that, in all felony -cases, “ the judge shall deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case.” Pase. Dig., art. 3059. But, had the paper purporting to be the charge in this •case been properly authenticated, we should have been compelled to have reversed the case for error of law therein committed. We notice this error, lest it should be fallen into again on a second trial if we failed to point it out and call the attention of the court specially to it. In the third paragraph of the charge, the following language is used, viz.: “If one take the life of another, with-put cause or excuse, with an instrument likely to produce •death, it is of express malice, premeditated and deliberate killing, and is murder in the first degree.” This is error, .■as has been repeatedly held by the Supreme Court and by this court. “ While the law implies malice on proof of voluntary homicide, it does not impute express malice.” Parrer v. The State, 42 Texas, 272. “Express malice, which is the essential constituent of murder of the first -degree, is never inferred or implied alone from the act done [363] or the means used in doing it; it must be proved aliunde, like any other fact in the case, by such evidence as might be reasonably sufficient to satisfy and convince the jury of its existence.” Murray v. The State, 1 Texas Ct. App. 417 ; O’Connell v. The State, 18 Texas, 344; Plasters v. The State, 1. Texas Ct. App. 673; Primus v. The State, 2 Texas Ct. App. 376 ; Jones v. The State, 3 Texas Ct. App. 150; Halbert v. The State, 3 Texas Ct. App. 659 ; McCoy v. The State, 25 Texas, 42. The judgment of the court below is reversed, and the cause remanded for a new trial. Reversed and remanded.