Hamby v. State

36 Tex. 523 | Tex. | 1872

Ogden, J.

The indictment in this case is certainly inartistically drawn, wherein it attempts to describe the wound of which the deceased died; but it in effect charges the defendant with having shot the deceased in the head, breast, and side, giving to him one mortal wound, of which mortal wound he then and there instantly died. Though this expression is a peculiar one, and might he held subject to criticism, yet it is believed that if either of the wounds described were proven mortal, the indictment would thereby be sustained; and it was not, therefore, bad on exception or demurrer.

The force of the objection made to the testimony of Jackson and Mrs. Methlin is not perceived. The deceased appears to have been a total stranger in the community, and we think the testimony of these two witnesses was properly admitted, to identify the person with whom they conversed, with the deceased. Their testimony was a]so admissible to show that there was some business or other relation between the defendant and the deceased. And the testimony of Mrs. Methlin was also material, as showing that the deceased just before his death, was in search of the defendant. This testimony is not objectionable' on the ground of being hearsay evidence, and the court did not therefore err, in admitting it to the jury.

But we think the court did err in overruling defendant’s motion for a new trial. The conviction was had almost wholly on circumstantial evidence, and that failed to establish any evidence of express malice, and yet the jury found the defendant guilty of murder in the first degree, and assessed the death penalty.

The main circumstances proven on the trial, upon which this verdict was found, are substantially as follows : On the day the homicide is supposed to have been committed, the deceased and defendant were at Jackson’s store, in Sherman, apparently quite friendly. They left the store and rode off together. Hot long after, defendant went to Methlin’s house and penned a horse there, which answered to the description of the one the deceased rode from Sherman, and said he had bought it. He got the horse and left for Ward’s, his brother-in-law. He looked as though he had been drinking. Soon after defendant left Methlin’s the deceased came, and appeared to have been drunk. He said he wanted to see defendant, who had his horse. The deceased left Methlin’s forWard’s a little before sundown, and was last seen by Methlin near Ward’s field. When defendant left Methlin’s, he went to Ward’s; got there about two o’clock; was drunk and said he had killed a man in Sherman that day; was at the house two or three times during the afternoon. He had the horse described as the one belonging to deceased, and also a gold watch supposed to be deceased’s, which he said he had won. About sundown he got upon the horse he claimed to have won, and rode off. He was seen soon after riding south in a gallop, in the direction in which the body of deceased was found, and the deceased running after him hallooing to defendant to stop. In about an hour defendant returned to Ward’s house; he acted very strange and restless. At one o’clock in the morning he left on horseback. He told Ward that a man would be found dead near there.

On the next day the body of the deceased was found ; he had been shot in the back, head, and side, and his throat cut.

These are the material facts, proven to connect defendant with the deceased, and with the terrible tragedy, and we fail to discover the evidence of premeditation or deliberation or formed design to take the life or injure the person of the deceased. He may have previously got wrongful and illegal possession of the property of deceased, with a design to rob or swindle; but if so, he had already accomplished that purpose, and up to the time he left Ward’s house at sundown, he wanted nothing more of the deceased ; and the last time the deceased was ever seen alive, the defendant was fleeing, and the deceased pursuing. What immediately followed, or who made the attack, or for what purpose, the evidence wholly fails to inform us, excepting by deduction. The deceased was killed, and if by the defendant, without any explanation, or evidence of provocation or excuse, then the jury would be warranted in finding a verdict for murder, but not murder in the first degree.

When a homicide has been proven, that fact alone authorizes the presumption of malice, and unexplained would warrant a verdict for murder in the second degree. But express and premeditated malice can never be presumed ; it is evidenced by former grudges, previous threats, lying in wait, or some concerted scheme to kill, or do some bodily harm, as poisoning, starving, torturing, or the attempted perpetration of rape, robbery, or burglary, and these evidences of express malice, or some one of them, must be proven as directly as the homicide, before the jury are authorized in finding a verdict for murder in the first degree.

The distinction between murder in the first and second degrees has been so often discussed by this court, that we deem it necessary here only to refer to a few cases, deciding this questíon. (McCoy v. The State, 25 Texas, 33; Maria v. The State, 28 Texas, 698; Ake v. The State, 30 Texas, 473; Lindsay v. The State, and Williams v. The State, decided at this term.)

We think the evidence in this case fails to establish such facts as would authorize a verdict for murder in the first degree, when founded on circumstantial evidence alone, and that the court erred in overruling defendant’s motion for a new trial; and as this case will go back for another trial, it maybe proper to state that the evidence wholly fails to prove which of the wounds, or whether any or all of them, were mortal, and the probable cause of the death, excepting from inference or reason. This is certainly a material defect in the testimony, and such as would require a reversal of the judgment if otherwise legal and valid, but which may be corrected on another trial. The judgment is reversed and the cause remanded.

Reversed and remanded.