18 Tex. 343 | Tex. | 1857
The appellant was convicted at the Fall Term of the Court, 1855. After verdict, he moved the Court for a new trial. His motion was overruled, and he appealed. The case was returned to this Court at the last Term, and argued by counsel for the appellant, upon errors assigned in the judgment. But on inspection of the record it was found that the District Court had omitted to cause the judgment to be entered upon the verdict, as required by the Statute ; and on the au
The entry of judgment in this case was in accordance with a settled practice, which has been recognized by this Court in numerous cases. Where, as in this case, the Court has failed to enter up judgment upon the verdict at the Term, but has caused entry to be made at a subsequent Term, this Court has uniformly entertained the appeal. The first case which is recollected, was determined at the second Term of the Court, and was, it is believed, the case of The Bank v. Simonton, reported in the second volume of the Texas Reports. The Court had omitted the entry of judgment upon the verdict; and there was a motion to dismiss the appeal on that ground. The appellant applied for a certiorari to perfect the record, which was granted. And, in answer to the certiorari, a transcript of a judgment was returned which had been entered upon the verdict at a subsequent Term, now for then. This Court thereupon overruled the motion to dismiss, and entertained the appeal. The report of the case does not contain the ruling upon this point, for the reason, doubtless, that it was disposed of without a written Opinion. There have been many similar cases since, in all of which there has uniformly been the same ruling. The point was fully and expressly decided in the case of Johnson v. Smith, et al., (14 Tex. R. 412,) and the power of the Court thus to enter up judgment upon a verdict after the Term was maintained. In that case there was a verdict rendered for the defendants at the Spring Term of the Court, 1849. Subsequently, at the Spring Term, 1853, on the motion of the plaintiff, the Court entered up judgment upon the verdict, now for them. A motion to dismiss the appeal was overruled ; and we then observed, that the practice of thus en
As respects the po wer of the Court thus to perfect the re rord, it can make no difference whether it be a civil or a criminal case; and the right to exercise it in such a case cannot be otherwise considered than as the settled law of the Court.
But if it were an open question, there can be no doubt of the propriety of its exercise in a case like the present; because it is evident, the entry of judgment, required by the Statute, upon appeal in a criminal case, is but a formal entry, and operative only for the purpose of enabling this Court to revise the-case upon appeal; and the judgment, for ail other purposes, re mains to be rendered or pronounced, after the decision upon-the appeal. The language of the Statute is : “ That in case-
It remains to consider the errors assigned in the proceedings.
The error assigned in the charge of the Court, is, in substance, that it does not distinguish and define the degrees of murder. But it must be observed that the mere omission to give instructions is not error. The Court is not bound in any case to give instructions not asked for by the party. If the charge of the Court was not satisfactory, it was the right of the defendant or his counsel to ask such instructions as he thought proper. If he omitted to ask particular instructions, he cannot assign as error the omission of the Court to give them. It is no objection to the charge of the Court, that it supposes the state of fact which the evidence showed really to exist, and deduced the legal conclusion applicable to such a state of fact. That is precisely what every charge should do. That is the design and purpose of giving instructions to the jury ; it is to inform them respecting the law applicable to the particular case in hand; and the more exactly the charge is adapted to the very case, the more likely will the jury be to arrive at a correct conclusion in the application of the law to the fact. Instruction beyond what the facts call for can never subserve any beneficial purpose ; and may mislead. The charge should be framed and is to be considered in reference to the facts of the case. And we are of opinion that there was nothing in the evidence in this case to call for an exposition of the law upon the degrees of murder. There really is no conflict in the testimony. The witnesses who testify to having seen the original assault, accord perfectly in their statements in every material particular ; and those whose attention was attracted by the noise, and who witnessed only what transpired
If in the facts of this case there was no color for a charge upon the law of justifiable homicide, or for leaving any such question to the jury, and even an erroneoiis charge upon that subject was no ground for reversing the judgment; most certainly there was nothing in the facts or evidence in the present case, calling for a charge upon the law concerning the degrees of murder ; and the mere omission of the Court to charge upon that subject cannot afford a ground for reversing the judgment.
Finally, there is no precedent or authority for any such distinction as that sought to be maintained by the counsel for the appellant, that the homicide may be proved to have been committed before, but not after the time charged in the indictment as applicable to such a case. “ The time of the commission of “ an offence laid in the indictment is not material, and does not “ confine the proof within the limits of that period ; the indict- “ ment will be satisfied by proof of the offence on any day ante- “ rior to the finding.” (Whart. Am. Cr. L. 220.) There are several exceptions to the rule; but the present 'case is not within them. One exception is, where any time stated in an indictment is to be proved by a matter of record ; there a variance will be fatal. Thus, in an indictment for perjury, the day on which the perjury was committed must be truly laid. (Ibid.) That was the case cited by counsel from 1 Gallison’s Rep. 387. It has no application to the present case. The general rule, as above stated, has always been held in refer
There is no error in the judgment, and it must, therefore, be affirmed.
Judgment affirmed.