55 S.W. 341 | Tex. Crim. App. | 1900
Appellant was convicted of murder in the first degree and his punishment assessed at death, and he prosecutes this appeal.
Appellant's first bill of exceptions raises an objection to a confession of appellant to W.B. Horton, the officer who arrested him. The bill *438 showed appellant was under arrest and the officer warned him in accordance with the statute; and thereafter, while on the way to the jail the officer asked him why he did that (i.e., killed deceased), and defendant replied, "I killed the sons of two bitches and am going to hell. I went there to kill them." This statement or confession was objected to by appellant on the ground that no sufficient predicate had been laid to authorize the introduction of the confession, and that the statement or confession was made within fifteen minutes after the killing and while defendant was in a state of intoxication, and it was not shown that he understood the so-called warning given by the officer. Aside from the grounds stated there is nothing in the bill showing defendant was in a state of intoxication and did not understand the warning or caution given him. It has been repeatedly held that the assertion of a ground of objection in the bill is not equivalent to a certificate of the judge that such ground existed. In such case the bill should have shown, as a preliminary matter, the environments or circumstances under which the confession was made, as that it was shown when appellant made the confession he was so intoxicated as not to understand the warning or caution given him by the officer. If the bill had shown this by a proper certificate of the judge, unquestionably the statement or confession of appellant under such circumstances would not have been admissible. Under the rules prescribed for preparing bills of exception and under the decisions of this court we can not regard a ground of objection to the testimony stated in the bill, as a certificate of the judge to the effect that the fact alleged as a ground of objection existed.
If we recur to the statement of facts to ascertain the condition of appellant's mind at the time he made the confession, the grounds stated are without support. On the contrary, it appears appellant was not intoxicated, and did understand the warning given him. However, we are not permitted, in order to help out a bill of exceptions, to refer to the statement of facts; and we only allude to this for the purpose of showing that evidently the judge did not intend to certify the grounds stated by appellant in his objections to the testimony were true in point of fact, but merely that he objected to the grounds stated.
Appellant excepted to the charge of the court on implied malice. We have carefully examined the same, and in our opinion the charge given is a correct definition of implied malice.
Appellant asked the court to give a special instruction on implied malice predicated on a certain state of facts recited by him in the charge. We think the court gave a sufficient charge on implied malice, and do not believe the charge asked embodied a correct view of the law on implied malice. Under the facts of this case we do not see any particular reason why defendant's mind should have become excited because one of the witnesses called Simon Smith. True, he and Simon Smith had some previous quarrels and difficulties in regard to the appellant's wife; but this matter appears to have been condoned. At *439 any rate a general charge on implied malice authorized the jury, if on any account they believed appellant's mind was not calm and deliberate, to acquit him of murder in the first degree; and they were authorized to convict him of murder in the second degree in case they found the killing occurred in a mind perturbed or excited by passion.
Appellant contends the evidence does not sustain the conviction of murder in the first degree. We can not agree to this. The evidence shows that the motive for killing deceased (who was appellant's paramour) was an apprehension or belief on appellant's part that she was trying to get rid of him. He appears to have made preparation for taking her life, and so far as the record shows, his mind was not disturbed or excited, but was cool and deliberate. He procured a pistol beforehand, then bought his ammunition, and went to the house of his paramour; and because of her evident desire not to make up with him, he deliberately slew her. True, there is some testimony showing that during the day and prior to the homicide he had taken a number of drinks, but there is nothing to indicate to our minds that he was intoxicated. The court, however, gave a charge on temporary insanity produced by the recent use of intoxicating liquors, and authorized the jury to consider the same in mitigation of the punishment, or with reference to the degree of murder, if they found the defendant guilty of murder. The jury evidently did not believe appellant's mind was disturbed by the use of intoxicating liquors to such an extent as to reduce the homicide from murder in the first to murder in the second degree. In this they were amply warranted by the facts; and they were furthermore warranted by the facts in finding appellant was guilty of having planned and carried out in a calm and deliberate mind the murder upon express malice of deceased, and we do not feel authorized to disturb their verdict. The judgment is affirmed.
Affirmed.
