*1 Reports. 74 Texas Criminal . From County. Harris Original habeas trial corpus The states the case.
No brief on file for appellant. Lane,
O. E. Assistant Attorney General, for the State. DAVIDSON, Judge. Hnder habeas trial corpus relator was refused bail. The of justice the peace had previously him to admitted bond in the sum of three dollars, thousand which the record shows he unable to The district give. trial, upon habeas judge, reached corpus the conclusion that was non-bailable. We do not agree with It conclusion. facts, unnecessary discuss in obedience to our rule we general do discuss facts. Justice of peace bail sumin of granted relator which could The case $3000, give. is bailable. The reversed judgment and bail in the sum of thrеe thousand dollars. Hpon bond, of this giving approved the sheriff of Harris county, relator will be custody discharged of under the terms the bond. is reversed bail judgment granted.
Bail grmted. Harris Sam
No. 3192. Decided June 1914. October 1914. Rehearing denied —Murder—Argument of of Counsel—Mutual Combat—Abandonment 1. Difficulty. Where, murder, upon parties evidence showed that had ran, then fight when defendant followed deceased parties de- on the with an interfered and took head him with into a house when defendant attacked an axe and ceased him, killed reversible there was error State’s counsel that combat, it would be the if he had had abandoned the mutual same as difficulty. engaged never —Same—Evidence—Insanity—Argument Counsel. сounty attorney, moment petulancy, derogatory in a made a immediately witness and questioning apologized about defendant remark same, therefor, instructed the not to consider -the error. reversible Intoxicating Liquor. —Same—Temporary Insanity—Dse insanity intoxicating Temporary produced liquors use of manslaughter, from murder to and the court did not err in reduce offense jury. to so instruct refusing requested Court—Manslaughter. —Same—Charge of is not the law defendant’s from the mind so intoxicated liquors use intoxicating immoderate extent in- recent should be reflection that that fact considered in capable cool manslaughter. issue Habéis mi.h.l Counsel—Preparation for Trial. —Samе—Appointed all the appointed required, time the statute gave counsel Where the court *2 postpone- made known that more time was desired a the fact was asked, verdict late after to contend that more
ment been too time should prepare case for trial. given counsel to the Insanity—Mitigation —Same—Temporary of Punishment. charged the the found Where defendant tempo- intoxicants, of rarily tion from the recent use to take this into considera- law authorized mitigation punishment the this was the of now, degree; murder since of one was under old different the statute. —Same—Postponement—Practice Appeal. the ease already postponed submission of the in this court had appellant’s request, Davidson, request once at Judge, dissenting. further could be granted. a Penalty—Indeterminate 8.—Same—Death Law. Sentence counsel, appellant’s of contention on motion rehearing, the punishment such crime, longer of in this any State does exist for and that punishment reрealed the Thirty- indeterminate sentence of untenable, Legislature is third the death and there jury assessing error in the for murder. Law—Legislative —Same—Indeterminate Sentence Intent. nothing repugnant inconsistent in the amendment inde- terminate sentence law' those fixing the death penalty for certain crimes; intention of being to restore to the defendant to have right assess in all and give cases consid- circumstances, mitigating eration minimum by and requiring the court to fix the the statute and the fixed maximum jury, person may convicted have the good benefit of conduct penitentiary. while confined in the 10—Same—Repeal—Death Penalty. amended, law, The indeterminate neither im- repeals provisions of
plication the death those the Code which authorize to assess crimes, they, certain when m judgment, their believe that assessed. 11.—Same—Sufficiency Penalty. of the Evidence—Death murder, Where, upon trial sustained the conviction assess- penalty, was no reversible error. ing the death District Court Jefferson. Tried
Appeal below before the Hon. H. Davidson. W. murder; from conviction of death.
Appeal the ease. states for appellant. F. Vaughn, V. Collins G. A. question re On 72 Marshall, Ex for crime: peal parte Crim. 161 W. Rep., Rep., S. Lane, E. General,
C. Assistant for the Attorney HABPEB, Judge. murder, found and his guilty Bepobts. Texas Cbiminal from which conviction he death, prosecutes aрpeal. it is that counsel for the shown State exceptions
In the first bill if the deceased and defendant in his jury, stated combat, in mutual combat abandoned engaged be in law the same as deceased had never engaged at all. in this Under facts not think this was case we do difficulty statement. The evidence that when attention very improрer shows was first down on called to-the parties, ground fighting; ran, that deceased after him took head with small Alfred ground. felling interfered and took the deceased into house to the blood Barnes wash house. off to force his into the him, endeavoring way *3 him home, Barnes ordered and undertook to deceased to his carry away, when withоut other he along behind; walking provocation him. with the as again Certainly, killing qualified court, the by the bill error. presents introduced Dr. Will T. as witness on Williams an expert the issue of insanity. He asked number of hypothetical questions, to which the answers, witness and then the ex- gave county attorney amined him hypothetically, stating the as he considered premises evidence, and end “How, doctor, of one of the questions stating: it, that’s the I can state far far concerned, best and as as am and as is concerned, of Texas are not after as State we this fellow doing objected but to statement en- anything justice.” Appellant “I stated: tirely gratuitous. county will withdraw attorney then. We want to thе hell we at once all can.” The court give statement, instructed the to consider such his jury written so them. The instructed county attorney apologized the court and used the such having Under expressions. circumstances, used nothing tending expressions show the no error guilt appellant, presented. county at first was the doctoi trying magnanimous аttorney by informing that neither he nor the done State wanted any injustice appellant, to,. and when as men often in moment he, this was objected do, the other remark. made As he court petulancy, apologized that so, done and the instructed was twice having hurt, any, and should be considered improper them, removed. was certainly
Tеmporary insanity the use of produced by intoxicating liquors murder not reduce offense and the manslaughter, err the special charge him to instruct refusing requesting so the terms of article 41 of the Penal Code, jury. By was provided, murder was divided into two degrees, insanity temporary reduce the offense from murder in to murder might the first produced other ad- In all instances the in the second degree. punishment, but not reduce the in mitigation missible Harris 2SUE]
grade of the offense. Evers v. State,
should have made fact known at the time the case was called for trial, or if the trial state during of facts arose which led to believe that by а postponement the case he could secure evidence beneficial his client,, he should have asked leave of the court to withdraw his announcement and postpone case. is too after late verdict such contention, make unless some showing made since the trial has learned of which would testimony havе been beneficial the affidavits of the and attach witnesses the facts stating to which In testify. showing made that any *4 witness would swear to fact—in fact the motion for a any new trial is to, not sworn is the affidavit of witness any attached to it, nor motion is the name of witness given.
Ho were made objections at it court the time was submitted to counsel and bеfore was However, read the jury. in the motion for new trial there is some complaint made as to that portion issue of presenting temporary insanity the recent use of liquors. This is a fair intoxicating portion presenta- tion of issue not subject and at it. It the criticisms leveled if authorized the found they insane from intoxicants, the recent usе of to take in miti- this consideration assessed, found gation they appellant guilty. This is all the law since murder is now of one degree. authorizes they court defend
Counsel 'was appointed by appellant, come to write that for them to ably. impossible is They ask that submission of the case be post- Austin at time, this the case once at аp- already until October. We have poned postponed in that they, them while- we must commend pellant’s request, to come Austin without without are willing money price, must yet adjourn as appeal, present submis- week, be justified postponing we do not feel we would If, however, counsel after the case for three months. sion of Beрorts. Criminal read this still think the opinion, they error for which presents record reversed, the case should doubtless motion file a for re- and as the death hearing, and counsel could not at time, come so desire we will hear them on the motion for rehearing. is
The judgment affirmed.
Affirmed. This DAVIDSOhT, Judge. a death I being penalty, ought think it to have been postponed argument till October term next. I express no as to questions discussed have not time to in- had them vestigate satisfactorily.
ON REHEARING.
October HABPEB, Judge. counsel, motion has Appellant’s for rehearing, raised the in Texas no question, longer death such for crime—that laws were repealed law passed indeterminate sentence the First Called Session This is Thirty-third the first Lеgislature. time such has question raised, but, laws our authorize course, longer the infliction crime, of death as a at any- can be raised question time, can be inflicted. But repeal does the indeterminate sentence law those statutes authorizing death to be for certain offenses? If im- so, for that Act contains no clause plicаtion only, repealing the death repeals by are assessing implication favored, is an when there unavoidable inconsistency the two Acts that the later held stat- law will be earlier repeal (Sutherland Con., sec. 247.) on Stat. is contended utory provision. first indeterminate Begular that the at the passed Thirty-third Legislature exempted Sessiоn its provisions words those cases which be as- by specific penalty may sessed, later so; and the Act does do it was the intention repeal those Code provisions for certain crimes. do not think so. referring We By to the first indeterminate sentence law Acts 33rd (Chap. Leg.) *5 that terms tooh the be seen its and by provisions away felonies, the to assess the in all in punishment cases right jury except to the desired inflict the death and where the jury required a fixed minimum court tó assess the at maximum and punishment the Session of the Acts of First Called Thirty-third Act (Chap. the and right duty to the made their it restored Leg.) jury felonies, in those cases the all necessarily including assess that be and then might in death penalty prоvided which the amendatory the penitentiary. By of time of imprisonment priori mu.] Habéis at in term of the years penitentiary, the should an indeterminate pronounce that the in judge the term sentence, the maximum the fixed law for of the least punishment a minimum term and
jury, there is nothing repugnant In this latter law such an offense. with those death certain affixing incоnsistent that the but it is manifest crimes, only clearly purpose restore to the had in view defendant right have the that cases, assess they considera- might give circumstances which mitigating tion to might disclose, then the court assess an sentence, indeterminate require using term as fixed imprisonment as the maximum term, that crime might convicted of be the benefit person given of good conduct penitentiary. while confined neither those repeals provisions of the implication Code which authorize the death assess the certain crimes when in their they think that should judgment be assessed. Ho court hold that those parts Code authorizing the infliction penalty had repealed, unless the Legis- lature statute had so by express declared, the language used in a later Act was so earlier repugnant provisions Code, that one was driven to the conclusion from necessarily the language used that this was intent purpose Legislature.
All the other questions discussed passed the original counsel’s other opinion, and contention made his able oral argu- ment in this court is that the evidence does disclose such state facts that been assessed. He does that the evidence contend does not show an unlawful killing, but the record raises the issue that appellant was recent use of intoxicating liquors. This issue submitted to the jury the trial court and fairly by find against his con- true, tention. Appellant, he was testifies so drunk he had no recol- lection of He the homicide. he took says one drink of whisky early and then morning, later drank two glasses remembers egg-nog more took nothing is evidence that place day. may also, have drunk a of wine quantity but of that fact. positive proof There is one eyewitness Alfred Barnes. He testi- killing, fies that he looked street he down the saw negro man white went to the fighting; he did know which ground; one was on top; that the white man shortly and broke run, when the took after him negro and when he overtook the white man, knocked Barnes says he at once to them ground. went recognized negro deceased as the white man. That deceased was head ground, his and. he then being bloody, them, man separated and carried the in a house to wash the blood from off of him. While came to the door and made doing Grim.-42,
Vol. *6 Reports. Texas 658 74 Criminal remarks. ordered him threatening Barnes and then undertook away man home. Appellant again white with- carry approached and аxe, down, a the white man with the out word struck knocking took after with the axe. fled, Barnes Barnes re- the white man lay ground, turned where s—n saying, b—h, “You G—d d-—-n kill and did so. you,” him— mark or scratch of did kind on some on his blood clothes came deceased. apparently the death This evidence certainly authorized law, kill, unless
under the shows a fixed appellant' purpose use of the recent intoxicating liquors. issue, on this we not feel and con pro issue. disturb finding motion overruled. rehearing
Overruled. King v. The J. M. 26, 1914. 3206. Decided June
No. 14, 1914. denied October Rehearing Phrases. —Loitering—Public School—Information—Words 1. ground, upon public school Where, upon loitering of unlawful 124, 1905, 70, alleged chapter the information under the Act of section offense, alleged to commit caused him the father minor 37, offense, under article instigated him to commit equivalent Penal that he Code, was sufficient. the information —Same—Sufficiency of Evidence. Where, public ground, minor loiter on the school upon causing trial of conviction, no reversible there was was sufficiеnt to sustain the evidence error. Appeal. —Same—Charge Court—Practice on failure exception of the court of an the absence In case, the same can requested misdemeanor give "in a of the court besides, State, re requested charges correctly appeal; reviewed on not be Rep., 56 Basquez v. Crim. Following Texas fused. —Same—Loitering—Definition of Offense. 1514, Code, Penal “loitering,” as used in article The word clearly loitering came meaning, restricted where act of narrow given a statute, by the the conviction sought to he remedied mischief within the sustained. Legislation—One Act—Subject of Offense. 5.—Same—Title 1905, provided chapter seсtion Legislature, Act Texas, ait making the section public free schools in complete system for a upon any public grounds, school any person loiter loaf misdemeanor Act, not contra etc., subject title embraced in the Texas, one the Constitution of and defined hut 3 of article vene section State, Rep., Crim. and other cases. Following Joliff offense.