No. 2291 | Tex. App. | Mar 12, 1887
It is objected to the indictment that it does not conclude “against the peace and dignity of the State,” and is, therefore, a nullity. The original indictment is before us, and we find that the words “against the peace and dignity of the State ” followed immediately after the charging portion of the indictment, and are the last words used by the pleader. In the next line below these words, and without any grammatical or other connection therewith, in a different handwriting from that of the indictment, are the words, “A true bill,” followed immediately and in the same handwriting by the official signature of the foreman of the grand jury. We hold that these interpolated words, “a true bill,” do not vitiate the indictment. They are no part of the indictment; are outside of and wholly disconnected with it. They are no part of the conclusion of said indictment, and in this respect the case differs materially from that of Haun v. The State, 13 Texas Court of Appeals, 383, as will be seen by reference to that decision. The language of that decision may be, and we think is, too broad and unqualified, but the conclusion arrived at with respect to that particular indict
Another objection to the indictment is for the first time presented in this court. It is that it affirmatively appears from the record that said indictment was not presented in open court by the grand jury. The record shows the file number of the cause in the District Court to be seven hundred and six, the charge in the indictment being murder. The entry upon the minutes of said court of the presentment by the grand jury of indictment number seven hundred and six names the charge in said indictment “an assault with intent to kill.” Upon its face the indictment shows that it was presented in the District Court by a legal grand jury. This recital in the indictment must be presumed to be true until it is shown to be otherwise. It devolves, therefore, upon the defendant to show that the indictment was not in fact presented in court. How and when does the law permit him to make such objection? We answer by exception to the indictment, which exception must be made before a plea of not guilty is entered. It can not be entertained when made for the first time in this court. (Hardy v. The State, 1 Texas Ct. App., 556, Alderson v. The State, 2 Texas Ct. App., 10; Strong v. The State, 18 Texas Ct. App., 19; DeOlles v. The State, 20 Texas Ct. App., 145.)
But, even if the objection now for the first time urged had been made in limine in the trial court, at the proper time and in the proper manner, we do not think it would have been a valid objection to the indictment. It is only required that the style of the action and the file number of the indictment shall be entered upon the minutes. (Code Crim. Proc., art. 415.) In this instance this requirement was fulfilled. It was not essential that such entry should name the offense charged in the indictment. (Steele v. The State, 19 Texas Ct. App., 425.) Hot being essential to the sufficiency of the entry to name the offense charged, it was an unnecessary act on the part of the clerk to do
It is earnestly contended by counsel for defendant that the evidence is insufficient to sustain the conviction, in this, that the evidence in support of the plea of self defense is at least cogent enough to raise a reasonable doubt of the guilt of the defendant. In this view of the evidence we do not agree with counsel. We do not think the facts showed, or even strongly tend to show, that character of self defense which would either justify or reduce the homicide to manslaughter. If the deceased, at the time he was shot, had been advancing upon the defendant in an angry manner, armed with a butcher knife, then indeed would defendant’s theory of self defense be established. But, unfortunately for the defendant, the evidence does not disclose such a state of the case. On the contrary all of the eyewitnesses to the transaction testified on the trial that the deceased was unarmed at the time he was shot by the defendant. They were in positions where they could and did see the deceased at the time, and they saw no knife or other weapon on or about his person.
The only evidence which even remotely tends to prove that the deceased was armed with a butcher knife is that such a knife was found upon the ground where the homicide occurred a short time after the difficulty, and that this knife belonged to the deceased. How, when or by whom the knife was placed upon the ground is not disclosed. Deceased was at the time of the occurrence traveling in a wagon with his family consisting of several small children, and had stopped to camp for dinner. These children were around the wagon, and may have had and dropped the knife where it was found. Deceased may himself have dropped it before the difficulty occurred. After defendant had shot deceased, witness Dunbar said to defendant “you have killed Davis.” Defendant replied, “Yes, he ought to have kept off of me.” Yothing was said by defendant at the time about deceased having a knife. If in fact deceased had been advancing upon the defendant with a butcher knife in his hand, and defendant had seen that he was thus armed, it is passing strange that he did not mention the fact to Dunbar at the time of said conversation, and call the attention of that witness to the knife. Instead of doing so, however, he mounted his horse and fled the country, and avoided trial for a number of years.
As to the charge of the court, it is full and correct, and fair and liberal to the defendant, presenting clearly the law applicable to every phase of the case made by the evidence.
We are of the opinion that there is no error in the conviction, and the judgment is affirmed.
Affirmed.