Angus v. State, 29 Tex. Ct. App. 52

Angus v. State

29 Tex. Ct. App. 52 | Tex. App. | 1890

WHITE, Presiding Judge.

1. No error is shown by the first bill of exceptions. Ho part of the excluded testimony related to or was connected with evidence elicited or drawn out by the State. Defendant was-allowed to prove the antecedent acts and declarations of Bradley fully. What he himself said and did about such acts and declarations was not admissible as res gestee, as they could not in any manner illustrate, nor were they concomitants or necessary incidents either of Bradley's acts or *62of the killing—the litigated act. Wharton’s Cr. Ev., sec. 263. It was not necessary to show the condition of defendant’s mind at the time the acts and declarations of Bradley spoken of were made, and his statements to third parties were not admissible to prove the condition of his mind at that time. But the court did allow him to prove that “ he seemed uneasy and afraid to stay there.” Deceased was not present at the time the statements and acts sought to be proved were made and done by defendant.

2. As to the second bill of exception, all of the testimony of the witness Cowan was drawn out by defendant. What Cowan said to and told the defendant as to the threats was admitted. What defendant said to Cowan upon being told of the threats was properly excluded, because it could in no manner- illustrate the threats.

The third bill of exception is in precisely the same attitude as the second. What defendant said to Johnson about the threats communicated by this witness was properly excluded. The State drew out no fact from Johnson relative to said threats nor defendant’s reply thereto.

It was perfectly legitimate and admissible for the State to show that defendant had on the two occasions referred to drawn his pistol and attempted to shoot Jenkins, having on both occasions mistaken Jenkins for Bradley. This testimony showed his animus towards Bradley and his determination to kill him. It evidenced the malice he bore Bradley. His apology to Jenkins and his admissions that he mistook Jenkins for Bradley were legitimate to show his animus, and that it was intended and directed toward Bradley and not Jenkins, and that his apparent hostility towards Jenkins was because of his mistaken identity for Bradley. Part of the testimony objected to was elicited on cross-examination by defendant.

The fifth bill was saved to the refusal of the court to give certain special requested instructions asked for by defendant. They show no error. The law of the ease was most fully, clearly, and pertinently presented upon every legitimate phase of the defensive testimony in the admirable charge of the court as given to the jury, and the special instructions were properly refused. Taken as a whole, no sound or valid objection can be urged or shown to the charge.

No charge was asked upon manslaughter, nor was the court’s failure to so charge excepted to. Its omission in this particular is first complained of in the motion for new trial.

In the brief filed in this case on appeal the learned counsel, on page 9, say: “The offense charged was murder; the defense was justifiable homicide under article 572.” Such is the case as we understand it from the record. Such was the case as understood by the learned trial judge as well as the parties; and such was the case which he submitted to the *63jury in the charge. There was no manslaughter in this case. It was plainly murder or self-defense.

Defendant was found guilty of murder of the second degree, and his punishment assessed at only five years in the penitentiary. We think he has reason to congratulate himself upon the mildness of his punishment.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.