Kemp v. State

28 Tex. Ct. App. 519 | Tex. App. | 1890

Willson, Judge.

In the prosecution of Guy Hall for an assault with intent to murder Sarah Hall, the intent with which the assault was committed was an essential issue. Bearing upon this issue, the character, extent, and effect of the injury inflicted upon Sarah Hall was, considering the other evidence in the case, an important inquiry. If the injury inflicted was slight, the presumption would be that he did not intend to kill her, because he had the power to inflict death and did not exercise the power. But if the injury inflicted was serious, the contrary presumption might be reasonably entertained. Any circumstance tending to show the motive or intent accompanying an act is relevant and material where motive of intent is essential to make the act a crime, or to fix the grade of the crime. Defendant’s statements to the effect that Sarah Hall’s injuries were slight, and that she admitted to him that she was not much hurt, etc., as set forth in the affidavit made by him in support of Guy Hall’s motion for a new trial, were, in our opinion, material to the issue made by said motion, and the trial court did not err in so holding in its charge to the jury, and in overruling the motion in arrest of judgment..

By the third paragraph of the court’s charge the jury was told that the evidence in the case was wholly circumstantial, and said paragraph then proceeds to explain the rules governing in such cases. This paragraph of the charge authorized the jury to convict upon circitmstantial evidence alone. This was error. Under the Code of this State a conviction for perjury can not be had upon purely circumstantial evidence which is not virtually direct and positive. Such conviction can only be had upon a confession in open court, or upon the direct positive testimony of two witnesses, or of one witness corroborated strongly by other evidence, establishing the falsity of the statement assigned as perjury. Code Crim. Proc., art. 746; Maines v. The State, 26 Texas Ct. App., 14. This error in the charge was not corrected by any other portion of the charge, and was, we think, calculated to prejudice and injure the rights of the defendant, in view of the character of the evidence adduced against him, even conceding that the evidence of the falsity of defendant’s statement was not wholly circumstantial. We are not prepared to say, however, that the evidence is not wholly circumstantial, and if it is, then said paragraph of the charge is manifestly erroneous and necessarily injurious to the defendant. Sarah Hall was the only witness who testified to the falsity of the defendant’s statements, and her testimony was not positive, but inferential—that is, that if she made the statements imputed to her in defendant’s affidavit, she had no knowledge of having made them. She may have been unconscious from the effects of the blow inflicted upon her, and while in that condition may have made said statements. The evidence does not absolutely exclude this hypothesis. We are inclined to consider her testimony as circumstantial only, and to agree with the trial judge that the evidence is wholly circumstantial. Such being the character of the evidence, the jury should have been instructed that they could not convict upon it.

Because of the error in the charge above mentioned, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Judges all present and concurring.