Caldwell v. State, 28 Tex. Ct. App. 566

Caldwell v. State

28 Tex. Ct. App. 566 | Tex. App. | 1890

Lead Opinion

Willson, Judge.

1. We think no error was committed in any ruling of the court in admitting testimony objected to by the defendant. The paper found on the premises of the deceased was proved to be in defendant’s handwiting by expert testimony. The orders used as standards of comparison were sufficiently established as writings made by the defendant. The book was found in defendant’s house, and it was proved that *575the same belonged to and was used by him to write in, and that the writing found on deceased's premises was upon a leaf taken from said book. Without discussing in detail the several assignments of error relating to the admission of evidence, we will merely say that, in our opinion, no illegal testimony was admitted against the defendant. That he was the author of the writing found on the premises of the deceased was, we think, legally and satisfactorily established. Code Crim. Proc., art. 754; Heacock v. The State, 13 Texas Ct. App., 97; Walker v. The State, 14 Texas Ct. App., 609; Haynie v. The State, 2 Texas Ct. App., 168; Long v. The State, 10 Texas Ct. App., 186; Speiden v. The State, 3 Texas Ct. App., 156.

2. It was uot error to refuse to permit the defendant to reproduce the testimony of Dr. Mayfield given on a former trial of the cause. Dr. May-field was living, was a resident of this State, and had been attached as a witness in the cause. If defendant was surprised by the testimony of Dr. Dillard, and desired to contradict it by the testimony of Dr. Mayfield, who was not in attendance upon the trial, he should have applied for a continuance or postponement of the cause. He certainly, under the circumstances shown, could not be allowed to reproduce the testimony of said witness.

3. It is shown by the evidence most conclusively that the homicide was murder in the first degree. It was a deliberate assassination. The issue of murder in the second degree is not raised by the evidence, and the court properly declined to submit the law of murder in the second degree to the jury. Blocker v. The State, 27 Texas Ct. App., 16.

4. We see no error in the charge upon the issue of alibi. It is sufficient and correct under numerous decisions of this court. Gallaher v. The State, ante, 247.

5. Counsel for defendant have earnestly and ably insisted on this appeal that the evidence is insufficient to sustain the conviction. We are constrained to hold the evidence sufficient. While it is circumstantial, it is, to our minds, most cogent and convincing, and fills the measure of the law. It shows that defendant had a motive to kill the deceased. Deceased was a material witness for the State in a theft prosecution then pending against defendant. A short time before the murder the defendant stated that deceased would not appear as a witness in said prosecution.

At the place of the murder, and about where the murderer stood when he fired the fatal shot, a threatening writing was found tacked to the fence. This writing was not there a short time prior to the murder, but was found there on the same night of and after the murder. It was shown to be the handwriting of the defendant, and the paper was a leaf taken from a blank book owned by the defendant and found in his house on the next morning after the murder. Tracks of two persons were trailed from the place of the murder, and these tracks went in the direction of defendant's house. The tracks of one were identified as the tracks of *576defendant’s brother, who lived at defendant’s house, and the other tracks corresponded with defendant’s feet. At defendant’s house a gun was found which had the appearance of having been recently discharged; also, shot were found in said house similar to those found in the body of deceased; also paper was found in said house similar to wadding found at the place of the murder, which had been discharged from the gun used by the murderer in committing the crime. It was further proved by those who arrested the defendant that he attempted to evade arrest by concealing himself.

We have recited the main inculpatory facts, and we think they establish the guilt of the defendant beyond reasonable doubt, and to the exclusion of any reasonable hypothesis save that of his guilt.

The judgment is affirmed.

Affirmed.

Hurt, J., absent.

Rehearing

Oh Motion for Rehearing.

Hurt, Judge.

But one ground is urged for rehearing, viz., the sufficiency of the indictment. The indictment is in these words and figures: “In the name and by the authority of the State of Texas: The grand jurors, good and lawful men of the State of Texas, county of Fort Bend, duly tried on oath by the judge of the District Court of said county touching their legal qualifications, impaneled, sworn, and charged to inquire into and true presentment make of all offenses against the penal laws of said State committed within the body of the county aforesaid, upon their oaths present, in the District Court of said county, that William Caldwell, late of the county of Fort Bend, laborer, on or about the first day of August, in the year of our Lord one thousand eight hundred and eighty-eight, with force and arms, in the said county of Fort Bend and State of Texas, did then and there unlawfully, and with express malice aforethought, kill one J. M. Shamblin, by shooting him with a gun, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

The first objection to the indictment by counsel for the motion is that it fails to charge that the accused murdered the deceased.

Hr. Bishop says: “It is familiar doctrine that, with such exceptions as foreign laws, private statutes, and municipal by-laws, the courts take cognizance of the law they administer; which, therefore, need not be specially brought to their attention, and need not be proved. On the other hand, there is no judicial knowledge of facts, and they must be alleged and established in evidence. Hence, it is one of the first principles of pleading that you have only occasion to state facts; which must be done for the *577purpose of informing the court, whose duty it is to declare the law arising upon these facts, and to afford the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it.”

“The indictment must allege the primary facts. For example, if it charges simply that the defendant committed larceny, it discloses only a secondary fact, produced by a combination of primary facts and law; or, in other words, it is a conclusion of the law upon the facts. And this is not a fit statement upon which to put the accused person on his trial. The pleader should set out the primary facts, disconnected from the law; and then the court applying the law to them, will declare the legal result.” 1 Bish. Crim. Proc., 329, 331.

The rule above stated is unquestionably correct, and is applied at common law to all indictments except for murder, perjury, and rape. At common law the indictment in murder must allege that the accused did murder the deceased, and in rape that the accused did ravish the prosecutrix. Murder and rape, as are all other offenses in this State, are statutory. Mr. Bishop says that, being a statutory offense, “the indictment must, as in other cases, substantially contain the essential terms of the statute.”

Bavish was indispensable in the common law indictment for rape, because it is in the statute of Westminster, 2, “If a man from henceforth do ravish a woman.” In Davis v. The State, 42 Texas, 226, the Supreme Court held that the indictment was sufficient without the word ravish or rape. This ruling was based upon the ground that rape was a statutory offense, and that the indictment followed the language of the statute. Bape is defined by our code to be “ the carnal knowledge of a woman without her consent, obtained by force, threats, or fraud.”

Any person with a sound memory and discretion who shall unlawfully kill any reasonable creature in being in this State shall be deemed guilty of murder. Hence, murder is the unlawful killing of a reasonable creature in being with malice aforethought.

We are not treating of the condition of the slayer’s mind.

How, then, if the word rape can be omitted from the indictment in a prosecution for that offense, why can not the word murder be omitted in the indictment for that offense? How is it that indictments for robbery, arson, burglary, theft (or larceny at common law), are sufficient when those offenses are not by name mentioned in the indictment? At common law there was an allegation in perjury that the accused “ did in manner and form aforesaid commit wilful and corrupt perjury.” What says Mr. Bishop on this subject? “But, unless the indictment is, as in murder, drawn on a statute the terms of which are not sufficiently covered by the preceding allegations, such a closing averment can not be necessary, for it is a mere conclusion of law. * * * Indictments should set out facts, not law.” 2 Bish. Crim. Proc., sec. 903.

*578To the writer this proposition is perfectly sound. But let us concede that the terms of the statute are not sufficiently covered by the preceding allegations. How does a conclusion of law aid such an indictment? This by the way.

A rule which is overwhelmingly supported by authority as well as reason, is that the facts constituting the offense must be alleged.

The second objection is that the indictment “ omits to charge the time and place of the alleged shooting.”

The indictment charges that the appellant, in said county of Fort Bend, on the 1st day of August, A. D. 1888, did then and there kill Shamblin by shooting him with a gun. How, the appellant could not kill the deceased by shooting him with a gun on said date and at said place without shooting him at that time and at that place. For if he killed the deceased by shooting him with a gun, the shooting must have occurred at that time, and this is alleged.

The third objection urged to the indictment is that it omits to charge the infliction of a mortal wound.

It charges that the appellant killed him by shooting him. This he could not have done without inflicting upon the deceased a mortal wound.

The fourth objection urged is that the indictment omits to charge the date of the wounding and that of the death. If appellant killed deceased on a certain day by shooting him, he must have wounded him before he died, and deceased must have died on that day.

These objections to the indictment present this question: Does this indictment inform the accused in plain language that he, on a day named, in Fort Bend County, with a loaded gun, shot, wounded, and thereby killed the deceased? It evidently does in the most simple and effective method. Ho man can read this indictment and have any doubt as to the time and place of the shooting, as to the wound, or the date of the same, or the time of the death of deceased. The information relating to these facts given to the accused by this indictment is as full as that contained in a common law form for this offense. The plain, simple truth is that the common law forms are calculated, in a great many cases, to confuse the accused. It is altogether useless to tell the accused that his gun was loaded with gun powder and leaden balls; that he presented his gun at, to, or against the deceased; that he discharged said gun, and that the leaden balls struck and wounded the deceased; that the wound was mortal, and deceased died from said wounds.

When told that he killed deceased by shooting him with a gun, the accused, unless insane, knows that his gun was loaded; that he discharged it at deceased; that he struck him with the ball or balls; that the wound inflicted was mortal, and that from it the deceased died. Under such information as is given by this indictment no man of common intelligence would fail to comprehend these facts.

*579The fifth objection is that the indictment fails to charge that the shooting was done unlmofully and with malice aforethought. Another objection is that it is fatally defective for want of certainty. These will be noticed together.

Treating of this offense, Archbold says: “It is of little matter'by what means the death was effected—whether by poisoning or shooting, stabbing, cutting, or wounding—whether with a deadly weapon, or with a stick or first; or by drowning, suffocating, or strangling, or the like.” If the killing was unlawful and with malice aforethought, the death being effected by shooting, such a killing could not be unlawful and with malice and the shooting be lawful and without malice. The allegation that the accused did unlawfully and with his malice aforethought kill the deceased by shooting him with a gun necessarily charges that the shooting was unlawful and with malice. It is true that to shoot a man is not per se unlawful, nor is the killing of a man. These may be correct propositions, but it does not follow that this court is presuming that a shooting with a gun is a killing. We are not left to presumption regarding this matter, because this indictment charges that the appellant did unlawfully and with malice aforethought kill the deceased. How? By shooting him.

Now, it is not alleged that appellant murdered the deceased by shoot- * ing him, but that he hilled him—the killing being one of the necessary primary facts, and not a conclusion from any other fact.

But it is objected that the indictment is not certain as to this fact—the killing; that there is no direct, positive, and certain averment that the defendant did kill deceased; that this averment is made indirectly by alleging that defendant killed the deceased “ by shooting him with a gun,” and that this method of charging a fact is not good pleading. We .are referred for authority in support of this proposition to The Republic v. Bush, 1 Texas, 455, and The State v. Higgins, 53 Vt., 191.

In the Bush case the statute provided that any person who shall keep a tavern, ordinary tippling house, or other description of establishment for entertainment, or for the sale of spirituous liquors by retail, and shall sell or otherwise dispose of wine, rum, brandy, whisky, cordials, or any other description of spirituous liquors in smaller quantities than one quart, without license, etc.

The indictment alleged that on a day named the defendant kept a tippling house by retailing spirituous liquors in quantities less than one quart without first having obtained a license therefor. Now, by reference to the opinion of Justice Wheeler it will be seen that the indictment failed to charge, directly or indirectly, the elements of the offense. This is evident from a comparison of the statute and indictment; and hence the Bush case is not in point.

In the Higgins case we have the correct rule. In the opinion it is *580said: “The charge in substance is that the respondent aided, etc., by doing-certain things. As the aiding another to sell liquor is not necessarily unlawful, the pleader recognized the necessity of stating the manner of' aiding. The averment was material. It must therefore be stated positively and directly, and in a way that can be traversed. An averment, that a person did one thing by doing another thing is not a direct and positive averment that he did the latter thing. The conclusion that he-did it is reached only by inference and argument, which is not sufficient. in a criminal complaint. The use of the participial form of averment is sometimes sufficient.”

Bishop,'in his work on Criminal Procedure, volume 1, section 556, saysr “ Where the direct averment is required, as in laying the main charge, it-is usually made with the verb. But any other part of speech which reasonably conveys the idea is adequate; as a participle or even an adverb». Approved precedents are numerous where this form is adopted; mainly in indictments for assault, breach of the peace, resisting an officer, disturbing religious meetings, and adultery. But in each instance it will be-noticed that the charge is direct: first, that the accused committed that. which was an offense in itself, without aid of further averments as to the manner of doing it; not that which only becomes an offense by reason of' the circumstances under which it was done. Williams, C. J., in State v. Day, 3 Vermont, 142, says: ‘ Every indictment must state all the facts and circumstances which constitute the offense; and when the act complained of becomes a crime only from its peculiar relations or circumstances, and without them would not be unlawful, then those circumstances or relations should be set forth in the indictment/ There are numerous authorities to the effect that if the averment is descriptive of a person, as being of a certain age or as holding a certain office, or relation, as being a sheriff, husband, or wife, or is descriptive of intent, or is a statement of knowledge, and this can be expressed so as reasonably to convey the idea, in a qualifying clause in a sentence containing the main charge, it may be done by use of the participle.”

Where lies the distinction? Evidently here: If the acts which constitute the offense are charged directly, the manner of doing it or the means used to accomplish it may be alleged in the participial form. 1 Bish. Crim. Proc., secs. 556-58.

What, therefore, are the acts which make up the offense of murder?' Omitting the capacity of the accused, murder-is the unlawful killing of a person with malice aforethought. This indictment alleges that the appellant did unlawfully and with express malice aforethought kill J. M. Shamblin. If this be true, appellant is guilty of murder, for it is, in law, impossible for one person to unlawfully and with his malice aforethought kill another person and not be guilty of murder.

This indictment charges positively the commission of that which is in *581itself a crime. It charges all of the acts entering into the make up of murder—not by alleging the doing of something else, but directly and positively. If all of the elements of murder were not directly alleged we would hold that no fact necessary to constitute the offense could be indirectly charged so as to cure the defect in the direct allegations. We call special attention to the Higgins case. It will be found an admirable exposition of these rules.

We have answered all the objections urged to the sufficiency of this indictment.

We desire to call attention to the following authorities holding such indictments constitutional: Newcomb v. The State, 37 Miss., 383; Noles v. The State, 24 Ala., 672; Wolf v. The State, 19 Ohio St., 248; Aiken v. The State, 35 Ala., 399; and specially to Rowan v. The State, 30 Wis., 129.

In this case the statute provides that in indictments or informations for murder or manslaughter it shall not be necessary to set forth the manner in which or the means by which the death of deceased was caused, but ;it shall be sufficient in any indictment for murder to charge that the accused did wilfully, feloniously, and of his malice aforethought kill and ;murder the deceased. All the constitutional objections made in the case before us were urged in the Rowan case. They were decided against Rowan upon the ground, mainly, that the indictment contained all of the essential elements of the crime. This being the case, it was held that the other matters and things contained in a common law indictment were formal, and hence within the power of the Legislature to change.

Now, we have held that the Legislature of this State has no authority to prescribe a form of indictment, and make the same sufficient, which fails to contain all of the elements of the crime. But we have never held that the Legislature could not prescribe a form for indictment which would not be good if the facts constituting the crime sought to be charged are contained in the form.

If the offense is sufficiently particularized as to come within the rule of pleading, we would hold that such form would not be obnoxious to constitutional objections, either Federal or State.

The motion for rehearing is overruled.

Rehearing refused.

Judges all present and concurring.

[The transcript in this case pertains to and is filed at the Galveston branch of this court, but the motion for rehearing having been disposed •of at the Austin Term, the case is reported as of that term.—Reporter.]