21 S.W. 367 | Tex. Crim. App. | 1893
Appellant was convicted of murder in the second degree, and his punishment assessed at thirty-five years confinement in the penitentiary, from which conviction he appeals to this court.
He applied for, and was refused, a second continuance of his cause. The facts expected to be proved by Mrs. Mobley, Lucy West, and Henry Stevens, if true, could have been shown by several witnesses who testified at the trial, because such facts transpired, if at all, at and immediately in front of the house, where twenty to forty people were assembled. The homicide occurred at a dancing party in the country, where the evidence shows the termination of such parties with personal difficulties seemed to have ripened into a well-recognized custom. Everybody present on the occasion of this difficulty seemed to have given this difficulty their personal attention, and every word, act, and movement, gesture and declaration, of the parties engaged, was watched by the bystanders with the greatest interest. If the defendant had used the language imputed to him in the application, it would have been heard by the witnesses who testified, because a difficulty was expected, and every word uttered and act performed by the parties to it was said and done in the expectant and surrounding crowd. If the testimony was true, it could have been proved by some of these witnesses. It is shown by the testimony of the witness Walter Thomason that Lee Griffith and Jeff Bull would not have testified as set forth in the application. Besides, if true, the testimony could not have affected defendant, because he was unaware of it at the time of the homicide.
The witness Sam Bull was, over defendant's objection, permitted to state his opinion as to the size of the pistol balls with which deceased was shot. It is unnecessary to enter into a discussion of the admissibility of expert testimony, under the facts of this case, because it was proved *554 by all the witnesses that deceased was killed by being shot with pistols. The size of the balls was wholly immaterial. They were of sufficient size and weight to perform the deadly work intended.
Defendant offered to prove by William Thomason, when he left the party, prior to the homicide, that he requested deceased and Lee Griffith to accompany him, and that Lee Griffith declined, with the remark that he "was going to break up the damned dance." Upon objection by the State, this evidence was excluded, and we think very properly. Deceased was in no way responsible for the remark.
The definition of "malice" given in the charge is in strict conformity with an unbroken line of decisions of this court, and is correct. Martinez v. The State, 30 Texas Ct. App. 129[
That ground of the motion for a new trial based upon the inability of the juror Nipper to read and write, is not sustained by the facts. It is not necessary to inquire further into the question. The evidence supports the conviction, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.
