No. 292. | Tex. Crim. App. | Jan 27, 1894
Conviction of murder of the first degree, with the death penalty. Two matters require notice:
Were certain jurors disqualified because they, or either of them, had such an opinion as to the guilt or innocence of appellant as would influence them, or either of them, in finding a verdict? We have carefully examined the bills of exception relating to each venireman, and are of opinion that no juror who served was disqualified because of such an opinion. We have tested them by the rules laid down in the Rothschild case, 7 Texas Criminal Appeals, 519, and other cases on the same line.
The court in its charge alluded to robbery. This was objected to by appellant. The charge did not permit the jury to convict appellant of either of the degrees of murder if they believed that the homicide was committed in the perpetration, or attempt at the perpetration, of robbery, but merely defined "robbery." The facts of the case establish beyond doubt that the murder was committed in the attempt to commit robbery, and the court should have instructed the jury, that if such was the case, appellant would be guilty of murder of the first degree. Sharpe v. The State, 17 Texas Crim. App., 486. The writer dissented in the Sharpe case, because robbery, or an attempt at robbery, had not been alleged; but the Sharpe case is the law of this State, binding upon the trial courts.
The court below gave all the instructions requested by appellant, and also submitted to the jury the question — the vital issue — namely, the condition of appellant's mind at the time he shot and killed the deceased, requiring, the jury to believe beyond a reasonable doubt that all the essential elements of murder upon express malice existed before they could convict of murder of the first degree.
Appellant testified; swore that the conspiracy was entered into at a certain part of the country, and not in the penitentiary. The State proved, over objection of appellant, that he had stated that it was formed by Benningfield and himself while they were in the penitentiary. This was competent evidence. It went to his credit. If he *82 lied about this matter, he may have lied when he stated that the shot was an accident; that he shot at no one until after he left the train, etc.
The record discloses a well-formed plan to rob the train; to rob it at all hazards; to murder all opposing, if necessary to effect the robbery. In fact, from the acts of appellant, we believe that the plan contemplated murder at the first step to accomplish the main object — robbery. Appellant has had a fair trial, and richly deserves his fate.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.