30 Tex. Ct. App. 601 | Tex. App. | 1892
Appellant was convicted of murder in the first degree, and the death penalty assessed, upon an indictment charging him with the killing of one Major Shaw.
Defendant made an application for a continuance for the testimony of several witnesses, two of whom appeared and testified at the trial. By two of the absent witnesses, to-wit, John Hardgrave and Emily Hardgrave, he proposed to prove that he is and always has been a peaceable and quiet citizen; by the absent witness Charles Tolbert, that he (the witness) had heard the deceased, on the day before the killing, say that he (the deceased) expected to find Lindsey Ellis (appellant) and bring him in dead or alive; and further, that this threat of deceased was communicated by Tolbert to him before the alleged killing; and further, that the deceased came to the house of Tolbert’s father on the day previous to the killing, and searched said house for the defendant, and at the time of said search he repeated the above named threat, and said that if he (the deceased) should find the defendant he would take him, dead or alive; and these facts were communicated by Tolbert to the defendant before the killing. He also stated in his application for a continuance that he had just learned that he could prove by one Herva Gibson, who had not been subpoenaed as a witness, that on the day before the killing the deceased had come to her father’s house, and searched again for the defendant; that he asked of her, in an angry and threatening manner, where the defendant was; and this was communicated to the defendant before the killing.
The court did not err in overruling the application for a continuance. If such threats were made as were proposed to be proved by the absent witnesses, they could not have availed the defendant anything upon the trial of this case, because the testimony adduced on the trial shows that the deceased was doing nothing which indicated any effort upon his part to execute any threats that he might have made at the
The rule is well settled that this court will not revise the action of the trial court in refusing a new trial because of its previous refusal of a continuance, unless it be made to appear not merely that the accused might probably have been prejudiced by such ruling, but that it is reasonably probable that had the absent testimony been before the jury a verdict more favorable to the defendant would have resulted. Browning v. The State, 26 Texas Ct. App., 432; see, also, Pruitt v. The State, ante, p. 156. In our opinion, even should the proposed absent testimony have been adduced on the trial, it could not and should not have affected the result, but on the contrary would rather have tended to have intensified the motive, animus, and malice of the defendant in killing the deceased under the circumstances attendant upon the killing.
Defendant’s second bill of exceptions complains of the charge of the court, in that it failed to define ‘ ‘ malice aforethought. ’ ’ With reference to the definition of the term “malice,” the fourth subdivision of the court’s charge is as follows: “The term ‘malice’ as used in its legal sense means the willful and intentional doing of a wrongful act without legal justification or excuse, and is a state or condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.” This definition of “malice” is in strict conformity with approved precedents. Gallaher v. The State, 28 Texas Ct. App., 247; Willson’s Crim. Forms, Nos. 708, 709.
Defendant’s third bill of exceptions attacks the eleventh and thirteenth paragraphs of the charge of the court, because in the connection in which said instructions were given the eleventh paragraph limited the reasonable doubt to all the phases of the case, excluding defendant’s nonage, and that as to the nonage of the defendant, the thirteenth paragraph of the charge imposed the burden of proof to establish nonage upon the defendant. These objections to the charge are not well taken. The principle that the burden of proof in criminal cases is always on the State has relation to the establishment of the corpus delicti and the defendant’s complicity; but when the defense relies upon distinct substantive matter for exemption or immunity, such as nonage—that is, that the defendant is under 17 years of age and can not be capitally punished—the burden of proving such matter is on the defendant; and the court did not err in so instructing the jury. Ake v. The State, 6 Texas Ct. App., 399; Penal Code, art. 51; Willson’s Crim. Stats., secs. 112-114. We are of opinion that the charge of the
Defendant’s fourth bill of exceptions complains of the sufficiency and legality of the verdict of the jury in this, that the verdict was written with a lead pencil and not with pen and ink. Our statute (Code Crim. Proc., art. 705) defining a verdict provides that it must be in writing, but it uowhere requires that it shall be written with pen and ink. With regard to an indictment, Mr. Bishop says it is usually written with ink, and practically it ought to be, but a lead pencil would seem to fulfill the strict requirements of the law, though, if an indictment were wholly written in this way, there is grave reason to believe that the court ought to quash it. 1 Bish. Crim. Proc., sec. 337.
We are of opinion that it is no valid objection to a verdict which is otherwise good that it was written in pencil. In the case of Clason v. Bailey, 14 Johnson, 484, the question as to the validity of an instrument written with a lead pencil is discussed at length; and the court there held the writing to be sufficient and valid. We are of opinion that the objection to the verdict that it was written with lead pencil was not sufficient to affect its validity, and not well taken nor maintainable in law. A verdict in lead pencil is a verdict in writing, under our statute.
The charge of the court sufficiently presented the law applicable to the facts in evidence, and we have found no reversible error in the judgment; therefore it is affirmed.
Affirmed.
Judges all present and concurring.