76 S.W. 473 | Tex. Crim. App. | 1903
Lead Opinion
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.
Appellant has presented a lengthy bill of exceptions, which recites the testimony of a number of witnesses. We gather from the bill that he only objects, however, to the failure of the court to limit the evidence of Mobley as to what Anderson McKinney told him that Tobe Davis had said to him (McKinney), to the issue of the credibility of said Anderson McKinney. We understand the court gave a charge on this subject substantially as requested by appellant, and it was not necessary, therefore, to give said requested charge. We do not understand that appellant excepted at the time to the failure of the court to exclude the evidence of Mobley, as the bill shows that defendant's attorney did not except at the time to the failure of the court but relied upon the request to exclude said evidence. When this request was made does not appear. The bill is not in such shape as to require a review by this court.
Appellant excepted to certain remarks alleged to have been made by the district attorney in his closing argument. These appear to have been in response to an argument by defendant's counsel. The court, it seems from the bill, admonished the jury not to regard the argument of the State's counsel, and no requested charge was submitted on this subject. As presented it shows no error. *473
Appellant also reserved an exception to the discussion of the facts by the judge overruling his motion for new trial. While this was improper it affords no grounds for the reversal of this case.
In motion for new trial appellant excepts to several portions of the court's charge; but it does not occur to us that there is any error in the charge. Among others, he excepted to the charge on principals. In this connection, he specially excepted to that portion of the charge which instructed the jury, that any person who advises or agrees to the commission of an offense, and is present when the same is committed, is a principal thereto, whether he aids or not in the illegal act. This is in accordance with the statute on the subject, and it occurs to us was pertinent to the facts of this case.
Appellant contends that the evidence is not sufficient to sustain the verdict. We have examined the record carefully, and in our opinion the evidence is sufficient. There being no error in the record, the judgment is affirmed.
Affirmed.
Addendum
This case was affirmed at the Austin term, and now comes before us on motion for rehearing.
Appellant insists that the testimony of the witness McKinney as to what Tobe Davis told him in the absence of defendant Franklin, in regard to the killing, should not have been admitted by the court, and his motion to exclude the same should have been granted. As stated in the original opinion this evidence was admitted without objection on the part of appellant, but subsequently he made a motion to exclude the same. The bill shows that appellant did not except at the time to the failure of the court to rule upon the request to exclude said evidence, or to the general charge when read to the jury; but afterwards presented his bill of exceptions to the failure of the court to exclude said evidence and to the charges given. This latter action appears to have been taken after the trial of the case, as the bill was prepared and allowed some three days thereafter. This comes too late to be considered as a bill of exceptions. Appellant also objects to the court's charge on this testimony, not on the ground that the court limited it to the credibility of the witness McKinney, because appellant asked a charge to this effect himself; but, he says, the charge given by the court on this subject was confusing, in that, in the court's charge the name Davis was used where McKinney's should have been used. We have examined the court's charge in this particular, and if we take in connection with this portion of the charge, what had gone before, there is no reason why the jury should have been confused on the subject. The court tells the jury that the State was permitted, without objection, to prove by Mobley that McKinney had told him (Mobley) that Davis had told him certain things about the case that might be damaging to defendant Franklin. The *474 court then proceeds to instruct the jury how they were to consider Davis' statement of what Anderson said or did, etc., when he should have told them how they were to consider Anderson's statement of what Davis said or did, etc. As said above, taking what just preceded this, the jury could not have misapplied the testimony.
Appellant also objects to the court's charge on accomplice testimony, because the court submitted to the jury whether or not McKinney was an accomplice, when the court should have instructed the jury that he was an accomplice. It has been held in a number of cases that the court could pursue either method. This was the only objection urged to the charge on accomplice testimony in the motion for new trial. However, appellant in his motion for rehearing contends that the court's charge on accomplice testimony was on the weight of the evidence. In answer to this, it is sufficient to say that this question was not raised as to the charge, either by bill of exceptions or in motion for new trial; consequently it can not be considered.
Appellant complains that the court failed to charge on abandonment of the difficulty by appellant. We do not believe the evidence raised this issue. Appellant also criticises the court's charge on principals, and especially that portion of said charge which told the jury in that connection, "that mere knowledge that threats had been made or that the offense is about to be committed, will not make a party a principal in the crime, if committed by another. And this is the law as to defendant, Jesse Franklin, even though he may have failed to give an alarm, and even though he may have kept silent as to threats or unlawful acts or purposes known to him before or after the commission of the offense. The law does not make it the duty of a citizen to run any risk of imperiling his own safety, or to incur danger, by interfering in the dangers or troubles of others; and such failure on his part to do so can not be considered as a circumstance of his guilt, or of aiding or encouraging the commission of an offense." It seems to us that this was a charge in favor of appellant, and was in response to the evidence in the case. Notwithstanding the very able brief of counsel for appellant on motion for rehearing, we find no error in the proceedings which led to the conviction of appellant; and as stated in the original opinion, we believe the evidence is ample to sustain the conviction. The motion for rehearing is accordingly overruled.
Overruled. *475
