Price v. State, No. 1354.

No. 1354. | Tex. Crim. App. | Nov 11, 1896

Appellant was convicted of murder in the second degree, and given twenty years in the penitentiary, and prosecutes this appeal. There is no bill of exceptions in the record. We will, however, notice such assignments of error as we deem necessary to a disposition of this case. The court charged on murder in the first and second degrees, manslaughter and self-defense. There is some slight evidence in the record of self-defense, and the court on this subject charged the jury substantially as follows: "If you believe the defendant killed the deceased, but further believe that, at the time of so doing, the deceased made an attack on him, which, from the manner and character of it, and the relative strength of the parties, and the defendant's knowledge of the character and disposition of the deceased, caused the defendant to have a reasonable expectation of death or serious bodily injury, that, acting under such reasonable expectation or fear, he killed the deceased, then you should acquit him." And the court further charged that the danger need not be actual, but apparent. This was all that was called for by the facts of the case bearing upon this phase of it. There is some evidence that when the parties met, just in front of the residence of the defendant, the deceased being on horseback, on his way to Wortham, and defendant having met him in the road in front of his house, after some words between the parties the deceased was seen to turn in his saddle, and throw his hand toward his saddlebags, and at this juncture defendant shot him with a shotgun. So, the jury were properly instructed as to self-defense in the charge as above set out. There was nothing in the testimony calling for a charge on self-defense, predicated on the idea that deceased had attacked, and was in the act of assaulting, the mother of the defendant. If such attempt at assault was made, it had transpired before the shooting, and the mother of the defendant at the time was in her house, out of view of the parties, as she herself testified, and did not see the shooting. The charge on manslaughter, while very general in its terms, was sufficient. The jury were told that an insult towards a female relative of defendant was an adequate cause to reduce the homicide to manslaughter, and then they were instructed that if the defendant killed the deceased in a sudden transport of passion, aroused by adequate cause, as heretofore explained, he would be guilty of manslaughter. Appellant complains that the verdict of the jury found the defendant guitly. It will be noticed that there is not a loop in either of the letters intended for "I" and "t" and that only the first of said letters is crossed, the cross not extending over the second The failure to make a loop in the "I" is not of unusual occurrence, and it often happens that the cross or dash in writing the letter "t" is not extended over the proper letter. Unquestionably, this word was written for the proper word "guilty," and was so read by the jury in rendering their verdict. It would deceive nobody, and we regard the assignment as hypercritical. See, Harris v. State (Tex.Crim. App.), 34 S.W. Rep., 922, and authorities there cited. Appellant assigns, as one of his grounds for a new trial, newly-discovered testimony. As sworn to by himself, this motion fails to show or state that the evidence has come to his knowledge since the trial, and that there was not a want of diligence on his part to discover it sooner. The newly-discovered testimony, as set out in the affidavits of the witnesses, is cumulative and corroborative of the witnesses who testified in the case. They lived within a short distance of where the homicide occurred (it having occurred in front of the residence of the defendant), and in plain view of the witnesses who testified to facts concerning the killing. The testimony of another witness, that the witness Weaver expressed surprise after the killing with reference to the homicide, would only go to impeach his testimony while on the stand to the effect that he was within about 150 yards, or, at least, within a short distance of the scene of the homicide, at the time it occurred, and saw all the matters attendant upon the killing to which he did testify. Under a long line of decisions in this State, these matters do not constitute newly-discovered testimony. If the defendant had used any diligence at all, he could have ascertained from these neighbors, who lived in plain view of his house, whether they knew any fact in connection with the homicide. He does not undertake to show by any affidavits that he used any diligence. In this state of case, under the authorities, this portion of the motion for a new trial shows no merit. There being no errors in the record, the judgment is affirmed.

Affirmed.