28 Tex. Ct. App. 542 | Tex. App. | 1890
Lead Opinion
This is a conviction for murder of the first degree, the penalty being death.
Counsel for appellant make thirty-six assignments of error. We have had the benefit of argument in support of several of these supposed errors, and we have carefully read the record and the brief for the appellant. The conclusion reached is that there is no such error in this record as requires' a reversal of the judgment.
We desire to discuss but one question—for to discuss all of the assignments would require the writing of a small volume, which we have not the time to do—remarking, however, that each assignment has received our most careful examination.
To support the conviction the State relies upon two aspects of the case, and contends that if either be true the judgment should stand. These aspects are:
First. That Evans was sitting in a chair reading a newspaper when appellant approached him, spoke to him, and before Evans arose, with the paper still in his hand, fired and killed him.. That the killing was with a calm, sedate mind and formed design.
Second. That, conceding appellant’s version to be true, to-wit: “ That between 9 and 10 o’clock of the morning of the homicide deceased came into the store and commenced talking with Davis, and said to him, ‘ Mr. Davis, I don’t think I will need your services any longer than the 15th— and this is not all; I have it from the very best information that you have been too intimate with a lady in the house;’ that defendant replying, asked, ‘What lady is that, Mr. Evans?’ Evans replied, walking off, ‘It is enough for you to know that you quit on the 15th;’ that defendant proceeded to wait on customers; that in the afternoon, Evans being in his office sitting in a chair, defendant went to him and said, ‘I think I have a right to know what lady you have reference to.’ Evans answered, ‘ Davis, you know well enough who I refer to; and Mrs.-and Miss-are no better;’ that defendant answered, ‘ Mr. Evans, I say if you make
We have thus stated the positions of the State with a view to the discussion of the only question we desire to notice.
Under the state of case presented by the testimony of the appellant his counsel contends that the court should have submitted the question of murder of the second degree. Was it in the case? Counsel insists that it was, and that hence there was error in the charge because it failed to ' submit that degree of homicide to the jury. The learned judge submitted the question of self-defense, but only one degree of murder—the first. There was no objection to the charge for this omission, nor did counsel request an instruction upon the second degree. We have reversed a great number of judgments, in all manner of felony cases, for this omission, though there was.no charge requested, nor objection because of the omission to charge the law applicable to the different phases of the case. But in the absence of requested charges or objection for the omission, what is the rule? We are discussing-the matter upon the hypothesis that murder of the second degree is presented by some evidence in the record. The rule is stated in Bishop’s case, 43 Texas, 390, to be that if the charge is erroneous and is excepted to at the time, the judgment will be reversed. But though erroneous, if not excepted to or proper instructions requested, the judgment for this error may or may not be reversed. If the omission was a material error—one calculated to injure the rights of the defendant—though the error is called to the attention of the court first in a motion for new trial, the judgment should be reversed.
But in determining whether the error is material and calculated to injure the rights of the accused we are to look to the whole record bearing upon the subject. What was the nature of the testimony supporting the verdict? Was it cogent and overwhelming? What the character of the testimony presenting the phase or theory of the case omitted to be noticed in the charge, and upon which omission error is assigned? Was it at all reasonable? Did it present a theory which a reasonable mind could entertain, or was it supported by such testimony as was remotely calculated to destroy the State’s case, when considered in connection with the other testimony in the case as well as the charge as a whole? Was the phase of the case simply an addition to the case as made by the State, and consistent therewith, or was it in direct conflict with the State’s
What then was the nature of the State’s evidence in support of murder of the first degree? We will not repeat the testimony, but will say that upon the first phase of the State’s case it is almost absolutely demonstrated, not only by the positive evidence of several witnesses but by all the surrounding facts, that this was a calmly and deliberately planned assassination—that the appellant, with a cool and deliberate mind and previously formed design, approached Evans, who was sitting in a chair reading a newspaper, and before he could rise shot him—an unarmed man—and continued'to shoot until he was in a manner dead.
Upon the second phase of the case the surrounding facts place it beyond contradiction that appellant, if what he says is true, calmly and deliberately provoked the difficulty—produced the occasion—with but one single purpose, and that was to obtain a pretext to slay the deceased. All of the facts not only tend this way, but form a mighty torrent moving irresistibly to this conclusion.
Now, then, this being the nature of the evidence in support of the second phase of the case contended for by the State, we can concede that, what the appellant swears is true, and still, as he calmly and deliberately adopted this method to provoke the difficulty or produce the occasion with intent to slay his victim, there is not only no self-defense in the case but there is no murder of the second degree; and in view of the facts—the cogency of the facts—the overwhelming conclusiveness of the facts in support of murder of the first degree—if a charge had been submitted permitting the jury to find a less degree, no juror with the least degree of intelligence, unless corrupt, would have entertained for a moment the suggestion of any theory less than murder of the first degree. The plain, simple truth is that an honest, conscientious man can not read this record without concluding that appellant’s version of this case was sheer fabrication.
But it may be insisted by counsel for appellant that his version may be true, and that he may not have provoked the difficulty or produced the occasion for the purpose of killing deceased, and that hence this was a question for the jury, and that the jury should have been permitted to pass upon the matter under proper instructions; that while the jury may not have believed that he acted in self-defense, they may have believed his version of the facts, and found him guilty of murder of the second degree. It is possible that the jury may have believed that appellant’s theory was true, and it is possible that they may not have believed that he provoked the difficulty or produced the occasion to have a pretext to slay the deceased, and it may have been possible that murder of the second degree would have been the verdict; but there was not the most remote
How, if counsel for appellant had objected to the charge of the court for the omission to charge murder of the second degree, or had requested a charge upon that degree, and it had been refused, there being some evidence tending to present this degree of homicide, we might have been required to reverse the judgment. This, however, is quite doubtful, because .appellant’s theory of the case tends only to meet the State’s first phase mentioned above, leaving the second position of the State unquestioned— that is, that appellant calmly,.deliberately, and very cautiously provoked the difficulty or produced the occasion for but one purpose—to kill the deceased.
As above said, we have very carefully examined the record in the light of the argument and brief of counsel for appellant, and in view of the awful verdict and judgment in this case; but we have failed to find an error requiring a reversal of the judgment. We have discussed but one question in the record, but we have given to all the others a most careful consideration, and we do not believe any of the assignments present an error for which the judgment should be reversed, and the judgment is therefore affirmed.
Affirmed.
Judges all present and concurring.
[The foregoing opinion on the original hearing of this appeal was delivered at the Tyler Term, on December 12, 1889. The motion for rehearing filed by the defense was taken under advisement, transferred to Galveston, and thence to Austin, and was finally disposed of by the opinion which follows, on June 4, 1890. The case is now reported as of the Austin Term.—Reporter.]
Rehearing
On Motion for Rehearing.
We have read carefully the motion and brief thereon, and have listened with pleasure and interest to the arguments for and .against the same.
As in the first opinion, so in this, we will discuss but one question—all the other supposed errors being met by the brief for the State.
As there is some evidence tending to reduce the offense from murder of the first to murder of the second degree, though its force be ever so weak, trivial, or light, counsel for the motion contend that it is not only the duty of the court below to instruct the jury on the lesser degree, but
We concede that under such a state of case it would be the duty of the court to charge on murder of the second degree, because this is required by the statute. But as there were no objections made to the charge (because of this omission) at the time, so as to bring the case within the provisions of article 685 of the Code of Procedure, does it follow that the judgment must be reversed whether the defendant excepted to the charge or not? This is the question; and we understand that counsel for the motion assume the affirmative, contending that if there be any evidence tending to present murder of the second degree or any degree of homicide less than murder of the first degree, the judge must charge on the less degree or degrees whether requested or not, and that a failure to do so will work a reversal of the judgment, though the charge was not excepted to at the time.
If this proposition be correct the party who fails to except to the charge occupies a position as favorable as would one who objects. Diligence in bringing forward the objection at the earliest opportunity has no reward— the careful and the diligent and the careless or negligent standing on the same plane.
In this connection we call attention to the opinion of Roberts, C. J., in Bishops's case, 43 Texas, 390. He says: “This difference in the rule, dependent upon the time when the objection, to the action of the court is made, is in harmony with the rules of judicial proceedings generally, that a party who makes an objection at the proper time, which is usually the first practical opportunity, shall have his objection more favorably considered than if it had been inopportunely delayed.'' In the above the Chief Justice is wrong if the counsel is right.
The statute, as is well known to the profession, provides that if there be error in the charge in a felony case, and it is excepted to at the time of the trial, the judgment should be reversed. But suppose there be error and the accused fails to except, will the judgment be reversed in all such cases? By no means. We will let Chief Justice Roberts state the rule applicable to such a state of case: “It is to be particularly noticed that the record shows, and properly by a bill of exception shows, in this casg, that this charge was excepted to by defendant’s counsel at the time of the trial, and before the case had been submitted to the jury, and before they had retired to consider of their verdict; and that thus an opportunity was given to the judge to correct or withdraw the charge if he had deemed it to have been improper, upon a reconsideration of it then made before the final submission of the case to the jury. This, in reference to the provisions of our Code of Criminal Procedure, will be found to be an important consideration in this case on appeal to this court, by the exceptions having been made, and shown by the bill of exceptions to have
“If such a charge is not excepted to at the time of trial, but is presented in a motion for new trial, which is the next point at which it could be presented, then its consideration by this court would be subject to another and a very different rule, which, would be whether or not such charge was an error which, under all the circumstances, as exhibited in the record, was ‘calculated to injure the rights of the defendant,’ and which is prescribed as one of the grounds for the granting of a motion for a new trial, in the following language: ‘ Where the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant.”’
Of what degree of force must the evidence be that tends to establish an offense, or tends to mitigate the offense charged in order to require a-charge applicable thereto? Chief Justice Roberts says that if its force is. deemed to be very weak, trivial, or light, and its application remote, “the court is not required to give a charge upon it.” “If, on the other hand, it is so pertinent and favorable as that it might be reasonably supposed that the jury could be influenced by it in-arriving at their verdict, the court should charge so as to furnish them with the appropriate rule of law upon the subject.” Bishop v. The State, 43 Texas, 390. Hence, unless the evidence tending to present a less degree of an offense, or any theory of defense, be so pertinent and forcible that it might be reasonably supposed that the jury could be influenced by it in arriving at their verdict, a failure of the court to charge thereon would not be ground for reversal in the absence of exceptions.
This position is in exact harmony with the first opinion in this case, and in accord with Bishop’s case, supra, and a number of cases decided by this, court, notably Cunningham’s case, 17 Texas Court of Appeals, 87; Elam’s case, 16 Texas Court of Appeals, 34; and Beeper’s case, decided at the present term, but not yet reported. See also Johnson’s case, 27 Texas, 758.
Boose expressions upon this subject can be found in the opinions of this court, but the principle is well settled and is absolutely correct, whether this court has always adhered to it or not, that in the absence of exceptions to the charge of the court, for this court to reverse, the evidence tending to present a phase of the case or theory favorable to the accused must be so pertinent and favorable that it might reasonably—not possibly —be supposed that the jury could be influenced by it in arriving at their verdict. Unless the evidence be of such a character no injury appears, no injury is probable—not possible, but probable—and unless this appears-there is no ground for reversal; and to reverse in the absence of probable injury would be contrary to principle. This would be the rule as to error in the charge of the court though excepted to, but for the statute..
We are of the opinion that there is no reason why the motion for rehearing should be granted, and it is therefore overruled.
Rehearing refused.
Judges all present and concurring.
