Cahn v. State

27 Tex. Ct. App. 709 | Tex. App. | 1889

Willson, Judge.

With respect to the organization of the jury, the defendant assigns the following errors, each of which is presented by proper bill of exception, to wit:

1. The court erred in organizing the jury and in impaneling the same in the following particulars, to wit: In not granting appellant’s motion to compel, by proper process, the presence of the seventeen absent jurors who had been drawn to serve on the regular special venire, and whose names appeared upon 'the list of said venire served upon defendant, before proceeding to form the jury, or compelling the appellant to select a jury from among the thirty-three special veniremen who alone, out of the sixty named in the list of the special venire, appeared and were present to be selected from.

2. The court erred in overruling appellant’s motion to compel, by proper process, the attendance of the aforesaid seventeen absent jurors, respectively, as their names were reached on the list and called, or to postpone the further formation of the jury until their presence could be secured.

3. The court erred in not granting appellant’s motion to> compel, by proper process, the attendance and presence of said seventeen absent jurors, after the thirty-three, who were in attendance, had been exhausted and only four jurors selected, before proceeding further with the formation of the jury, and in not postponing the formation of the jury until the absent jurors could be procured or their absence accounted for, but in at once issuing a special venire for talesmen.

4. The court erred in refusing appellant’s motion to call in the regular panel of jurors for the week, who had been regularly drawn by the jury commissioners of the county, after the special venire had been exhausted, and before issuing a venire for talesmen, because, under the law relating to the formation of juries in capital cases, the defendant is entitled to have all the jurors who have been drawn by the jury commissioners first placed in the box to be selected from, before ordering a venire of talesmen from the body of the county; and because the special venire ordered for the trial of this case was incomplete in that only thirty-three of the sixty special veniremen were present, though duly summoned to attend, and defendant’s motions to compel their attendance had been overruled, and in such case the regular panel for the week should have been first placed in the box and drawn from before the issuance of a venire for talesmen.

Each of said assignments of error is fully sustained by the record, and is fatal to the legality of this conviction. We shall not consume much time in discussing these errors, .as former decisions and statutory provisions make them manifest. We call to the attention of the trial judge to Osborne v. The State, 23 Texas Court of Appeal, 431; Weaver v. The State, 19 Texas Court of Appeal, 547; Thuston v. The State, 18 Texas Court of Appeals, 26.

As to the dying declaration of the deceased, we do not think there was error in admitting them. A sufficient predicate for their admission seems to have been established.

It was not error to refuse to permit the witness Waller to testify to what defendant said about how and why he killed the deceased. These statements of defendant were not made under circumstances constituting them res gestae, and were inadmissible.

It was not error to permit the State to read in evidence the receipt dated June, 1887, and the note of the same date for four hundred dollars. These documents were relevant, tending to throw light upon the business relations of the defendant and the deceased, and to show that the deceased was not indebted to the defendant, as claimed by the latter. It was within the discretion of the court to admit this evidence in rebuttal, and we think the court properly admitted it when so offered.

There was no error in refusing to require Emil Kahn to disclose to the defendant or his counsel what facts he would testify to (Withers v. The State, 23 Texas Ct. Ap., 396.)

Numerous exceptions were reserved by the defendant to the charge of the court, and numerous special instructions were requested by the defendant, which the court refused to give, and defendant excepted. We shall not undertake to discuss each of the objections urged to the charge, but will merely, in a general way and briefly, state our conclusions.

1. The definition of malice given in the charge is not correct. There may be “a settled purpose or intention to seriously injure or destroy another,” and yet no malice may exist in the mind of the person entertaining such purpose or intent, as in the case of a sheriff who executes a death warrant, or as in the case of a person who commits justifiable homicide in self defense. (Bramlette v. The State, 21 Texas Ct. App., 611; Harris v. The State, 8 Texas Ct. App., 90; McKinney v. The State, Id., 626; Pickens v. The State, 13 Texas Ct. App., 353; Hayes v. The State, 14 Texas Ct. App., 330.)

2. With" respect to self defense, the court should, in view of the evidence, have instructed the jury that if the defendant provoked the contest with the deceased, but not with the intention of killing or doing him serious bodily injury, he would not by such provocation be wholly deprived of the right of self defense, but that in such case self defense might be availed of by him to the extent of reducing the degree of the homicide to a grade less than murder. (White v. The State, 23 Texas Ct., App., 154; Roach v. The State, 21 Texas Ct. App., 249; Thuston v. The State, Id., 245.)

3. We think the special instructions numbers thirteen, fourteen and fifteen, requested by the defendant, are applicable to and demanded by the evidence, and are correct in principle. They are a part of the law of the case, and it was material error to refuse them.

In other respects in which objections are urged to the charge, and to the refusal to give requested instructions, we hold np error was committed.

We will here take occasion to make some suggestions in regard to the preparation of cases for appeal. It is very desirable that a transcript on appeal should contain only such matter as is essential to an intelligible consideration and determination of the questions involved in the case, and this essential matter should not be unnecessarily repeated. Thus, where an application for a continuance has been overruled, and the defendant has excepted to the ruling, it is only necessary that the application should be inserted once in the transcript. Where the bill of exception sets out the application in full, it will be sufficient to insert the bill. So, it is unnecessary to except to the action of the court in overruling exceptions to an indictment, or in overruling a motion in arrest of judgment, or for a new trial, and the transcript should not be encumbered with exceptions of this kind. So, in the preparation of a statement of facts immaterial matter should be excluded. Only the material facts should be inserted, and as succinctly and clearly as practicable. Stenographic reports of the evidence, containing questions and answers, remarks of the reporter, etc., detailing every word spoken by the witnesses, as well as the remarks of court and counsel, should not be certified as a statement of facts.

We are induced to make these suggestions because of the unnecessary voluminous transcript in this case. It is a transcript covering five hundred and thirty-seven pages, when, in our judgment, if the case had been carefully and properly prepared for appeal, the transcript would not have exceeded one hundred pages. The statement of facts, furnished we presume by a stenographer, cover over two hundred pages, when every material fact proved on the trial could, we think, have been presented in a statement of thirty pages. Such voluminous, unwieldy transcripts require of this court much useless labor, and the consumption of valuable time, and frequently obscure the merits of the case. A very little care on the part of the connsel and the court in the preparation of cases for appeal, would relieve this court of a vast amount of unnecessary labor, and enable us to more readily and intelligibly dispose of causes.

Opinion delivered May 25, 1889.

Because of errors we have mentioned, the judgment is reversed and the cause remanded.

Reversed and remanded.