*1 practice, we have heretofore reached the conclusion expressions sense; are the intention is used technical clearly expressed it. hold- and that this court should follow That ing will adhered to. be granted prayed The writ for and the relator is ordered further, discharged custody judgment pleaded. from v. The State.
No. 22571. Delivered June 23, 1943. Rehearing Denied October states the case. Houston, Bernard,
H. J. Spurgeon Bell, Atttorney, E. Austin, State’s for the KRUEGER, Judge. punishment murder. The offense is assessed is confine- penitentiary for a years. term of
ment only question presented suffi- review relates to the ciency justify of the evidence to and sustain his conviction. opinion may truly
In order that the basis for reflect *2 subject discussion, proper our conclusion on deem it we quote pertinent testimony relating question to some of the to the witness, presented. The “I Curtis Hubbard testified: live * * * * * * Edgar Bastrop. Edgar just I knew he died. Resell before of the back at Rufus Jackson’s cafe inwas day, Resell is dead. Artie killed * * * daytime Dallas about Special when he killed * * * —a 16th of knife in the town May, him; him, blade. * * * he * * * of stabbed * * * Bastrop. about That At him in the the middle happened the time * [*] * It stabbed, trying put he was he was to a nickel in the Victrola.” Bays, sheriff, deputy E. D. testified: “I had occasion to day May, to Rufus Jackson’s cafe on the 16th of to investigate killing. laying I found a man * * * bleeding. place, pieces back of Rufus’ cut all to I * * * picked up hospital. him and carried him to the I looked * * pocket-book papers his find to out he was. who * * * Edgar man that was was named cut Rozell. I then went inquired cutting; they back down there and who did the told Gage. brought me. I up arrested Artie I him on to the court him, up house and him and held I locked because was afraid going charge that man die. I didn’t was to want to file a going place. him until I did know what was to take man afternoon, charge died three o’clock that and then I about filed a Gage.” of murder voluntary
Appellant made a confession in which he made following pertinent questions to the raised: noon, today, 12:00 o’clock I went into “About Rufus Jackson’s Edgar standing and I saw Rozell the Victrola. I didn’t him; say anything just up to I walked to him and stabbed him 4 times.” or Jackson, Sr., along “I Rufus testified: May remember about Edgar year my of Rozell killed last down at cafe. I wasn’t killing.” down there at the time of the Jackson, Jr., testified, among things, Rufus as follows: my “I was down there at at father’s cafe the time Artie boy (Edgar Rozell) boy killed that and I was there while the yard.” was out in the not, Edgar If that Rozell is dead?
Does this evidence show not, why not? why it death? If not? his Does good good apparently humor when He health and placing with a nickel therein stood near the Victrola and was listening at time the sweet sound music which view to open Special— appellant appeared knife —a an Dallas language pieces.” deputy sheriff, and in “Gut him all to immediately out the door and fell deceased went ground. deputy sheriff who carried him the was afraid he would die as a of the wounds and result any charge against appellant therefore did file until about not injured party three hours when the had died. later It question occurs to us that there can be no the wounds inflicted defendant the deceased were fatal and were proximate the immediate and his death. No other rea- sonable can conclusion be reached from evidence introduced. *3 Appellant State, cites us to the cases Porter v. 215 S. W. 201, 23; State, 86 Tex. R. (2d) Cr. and Baker v. 248. S. W. easily distinguishable These two cases are from the instant case case, on any the facts. In the Porter no one found wounds on body the course, of the deceased. Of Dr. Crain testified that in his body strangulation. she died either from chloroform or The eight days was found about or nine after she was last seen company body, legs with the securely with its wire, tied river, was found in the and this court held case, the supra, evidence In the appellant sufficient. Baker charged poisoning her husband. The case was affirmed on original submission, rehearing the but on motion for it was re- any by any versed because there was not evidence doctor who poison attended the a quantity deceased that sufficient produce regard administered to death. We do not the authorities sustaining appellant’s cited opinion, In contention. our the State, Thompson case analogous 38 Tex. Cr. R. is more consideration, to the one and that case the evidence was corpus held sufficient to establish the delicti. See also Vela v. State, 361; State, 62 Tex. R. Hillman v. Cr. 126 Tex. R.Cr.
Having the conclusion that reached the evidence is sufficient of the death of the appellant’s deceased and therewith, judgment the trial connection the court is affirmed. foregoing opinion of Appeals the Commission of has by Judges the the Appeals Court of been examined Criminal approved the Court. rehearing. appellant’s motion for
on Judge. BEAUCHAMP, predicated the in this is
The motion case appellant’s the that “It the contention that State prove the of the stab failed to deceased died as a result wound received.” distinguish He seeks to the case from those discussed
original opinion on the the deceased was taken from the and died at where wounds were inflicted hospital, physician. where he and a was observed a nurse argued that Neither of these was called as a witness and it is State’s failure to call them is to be considered circum- which, stance with all of the when considered evidence, require would a reversal. original opinion quotes testimony. The State made proof any its of the cause of the death sufficient to reasonable surrounding mind when all the circumstances are considered party and it became incumbent on trial to cast some death, on the cause of the in order to invoke doctrine suggested. chiefly was not done. This Reliance is had (2d) case of Buford v. State 17 W. stabbing 1072. In that S. case the January. on the 14th occurred died in days later. His wife described the wounds and very description little more indicated than scratches body hardly of her From what said husband. she one would time, anticipated, have that death would result. Hence evidence, necessity the available as set out *4 parallel. opinion. reasonably are not The two cases No one could of the death involved in the instant unnecessary case and it State to further in view presented. of the record
Motion for is overruled. McIntyre
Hubert No. 22582. Delivered October