*1 42d Texas Criminal to the refusal of the court to exception same. We were there- give in error in that no fore on this holding charge requested subject. was not authorized to make accurately speaking county attorney While observation, it does not occur to us that this yet such affords sufficient for reversal. We do not deem it to discuss other necessary ground ques- for in the motion were all rehearing, they tions raised discussed rendered, and we see no reason to our change views original opinion The motion for heretofore overruled. rehearing expressed.
Motion overruled. v. The State. Bob Stevens 27, Decided June 1900. No. 2551. Defendants—Agreement Turn State’s Evidence. 1. Severance Joint joint defendants to by one or more have other codefend- for severance Affidavits 707, tried, compliance provisions with the in strict article although ants first Procedure, the affiants to such not entitle severance where will of Criminal Code codefendants, affidavits of and the controverting appear it is made defendants, they into that, entered with said agreement attorney an district joint the other codefendants and receive im- against to turn State’s were munity 707,and articles 37 and of Criminal article Code court, punishment. from attorney, permit with consent of the Procedure, the district authorizing turn a crime to State’s evidence in order to accused of parties more of one or codefendants, together. must be construed their as witnesses use them Coconspirators. Declarations of 2. Murder—Evidence—Threats—Acts shown, murder, conspiracy is the acts and declarations of and intent of where On trial design, purpose, the common prove admissible coconspirators are acts and such declarations were before or after conspirators whether all the same conspiracy, or whether were made before the defendant of the formation conspiracy. party knowingly Where a enters into a con- into the entered on trial spiracy, acts, formation, adopted previous he is held to have all the after its declarations, trate the common conspirators previously made which tend to illus- designs design, purpose, and intent all acted. with which Conspirator Has Turned State’s Evidence. Who 3. Same—Letter murder, coconspirator who has turned State’s evi- the letter of a a trial for On wife, dence, any purpose. in evidence for jail from to his is not admissible written Same—“Malice”—Chargeof Court. murder, substantially correct de- a trial for On aforethought is a condition of mind in which one follows: “Malice malice as fines man rights of the disregard in willful injury an intentional to another does * * * voluntarily and ex- a cruel act without It exists when one does other. cuse, extenuation, necessarily hatred towards include justification, or and does not * * * a murder is committed Express malice exists when person injured. the with design to previously of a formed pursuance mind and in sedate and deliberate Henderson, concurring opinion Upon point see person kill killed.” Judge. 5. Same evidence, murder, where, com- it that the crime appears from the On a trial for cold-blooded, murder, definition of “malice” an erroneous deliberate mitted in the court’s awas charge would be harmless. Lesser'Degrees. Same—Charge as to in the murder, the issues of murder only raises where the evidence a trial for On State. 1900.1 alibi, degree upon any first is not error for the court refuse to *2 of phase degree manslaughter. murder the second nor Nor can it be understood charges why such were called for the the although original design murder, evidence shows defendants, coconspirators, the of who were was commit they by hanging afterwards committed deceased. Same—Charge 7. as to Alibi. murder, alibi, court, a trial for charged On where the the defense the of jury, “The guilty charged defendant could not present unless he was at the offense, and, any; the commission of if you if have a reasonable doubt of defendant deceased, being present him,” Held, killing any, at the you of a acquit will dis- tinct, clear, and substantive charge upon law of alibi. Jury Jury and Law—Practice. murder, trials for practice jurors kept In is the better to- should be themselves, gether permitted worship should not be to attend divine likely statements might where made prejudicial rights. to defendant’s Change of Venue. motion, court changed has of prosecution Where venue of own appeal court on will not revise such action unless there is shown an obvious clear absence of discretion under the statute. Appeal from Anderson, the District Court of on a of venue change Lips- from the. of county Henderson. .Tried before A. below Hon. D. comb. from
Appeal a conviction of murder in the first degree; penalty, for life in imprisonment the penitentiary. indictment, by the charged with Joe together Wil-
kcrson, Wilkerson, Brooks, Hall, Johns, Walter B.W. Sam W. A. Gaddis, John with the murder of Jim him Humphries hanging with tree, a rope 1899, on the of day 23d in Henderson May, County. At the same of court term each above defendants joint was separately indicted in two for different indictments the murder of the other two in one Humphries; for murder of John Humphries; in the other for of the murder that is to George Humphries; say, defendant, Stevens, Bob as set jointly above, indicted out with all for of defendants the murder Jim Humphries He (number 2840). was also indicted 2853) indictment for the mur- (number separate der of in another indictment George Humphries; separate (number for the murder of John so 2854) was each of the other Humphries, and defendants indicted. similarly Greenhaw, Greenhaw,
John Arthur and Polk Weeks each sepa- indicted, each; rately three bills that is John against say, Greenhaw another, bill for of indicted one the murder Jim Humphries; for murder of John and in another for the murder of Humphries, Polk George and so with Arthur Greenhaw and Weeks. Humphries, At the term of September the District Court of County; Henderson 7, 1899, court, motion, September of his own the venue changed defendants, of all the Arthur John and Greenhaw Polk except Weeks, cases, in all of the of Anderson County, District Court Texas, to which order so said venue the defend- changing ants tendered their exception. bills 42d Criminal
On the 18th at term of day September, said September court, motion, District own Court Henderson on his County, Greenhaw, transferred case each against John Arthur pending Greenhaw, Polk Weeks to said District Court of County, Anderson Texas; the case wherein each of them is charged the mur- der of cases two each them George Humphries, leaving pending in the County District Court Henderson for the murder John for of Jim the murder Humphries Humphries, respectively. All of the joint defendants in number 4383, number 2840 on being the docket the District Court Henderson made their County, joint motion and affidavit severance in all things complying statute, asking the two Greenhaws and Polk Weeks be tried in ad- codefendants, vance of said have un- they might their testimony *3 the of tainted at time its either delivery by the of said three acquittal an order persons, dismissal of the prosecution pending against them, to the end that each might testify without a prosecution hanging him, over which motion was overruled by the court all joint and the defendants ordered by the court to make an announcement. All the defendants, defendant, joint Stevens, the R. J. except then made their motion and affidavit to have said Stevens first on trial in advance put of them, which motion was by sustained the said and Stevens ordered to announce. The said defendant Stevens then his indi- motion, vidual severance, affidavit for a the supported by asking him, said two Greenhaws and trial in Weeks first on advance put which motion individual was also said by overruled court an3 on Stevens forced trial before The go said Greenhaws and Weeks. which the court in objection upon acted said grounds overruling motions severance and in John and Arthur put for Green- refusing defendants, or in haw on trial in advance of the joint advance Stevens, are contained in the answer affidavit and pro- defendant and test made Weeks. Greenhaws district filed his answer and motion attorney protest also tried, of said to have said Greenhaws and first joint defendants Weeks which the court the motion of the joint also considered overruling defendants. The stated these substance of matter protests of the court the severance will be fully opinion found stated below. codefendants,
As whose motion above, stated on motion his joint trial, for a on which severance was was first granted, put in his resulted conviction as above stated. Jim, John, is known as Humphries, and lived what George,
the trans-cedar each taken country, Henderson were County. They homes, 23, from their and at between and 2 o’clock m., p. May tree, mob, were to a a their hanged far from very the places residence. and John were each of Jim George Humphries sons-in-law and lived but a com- short distance from him. The Humphries, parties 1900.] v. The State.' prising mob which them stated that hung they a hunting who, man Patterson, thereto, name some time prior had killed man a the name Rhodes and was (a otherwise constable), charged and had the reputation being thief and bad It character. appears that he and fugitive, the mob claimed that concealed being by the who were also claimed to be hog thieves. Polk Weeks Humphries, and John Arthur Greenhaw evidence, turned State’s tes- they tified that constituting mob had parties Hum- hung Patterson, to find they after failed consisted of the phries, following- Wilkerson, Wilkerson, viz: named Joe Walter B. persons, Brooks, W. Gaddis, Mahan, Johns, Hall, Greenhaw, A. Arthur W. Sam John John Greenhaw, Weeks; case, Polk in this Bob Stevens.
John Greenhaw, in facts testifies to the immediate testimony, attendant follows: That after each of arresting hanging, road, the parties and them out into the to the Hum- taking they talked awhile. phries mob, the" them where Pat- They, they “asked knew was, terson and the They know. talked Humphries said didn’t they there awhile then where took them out in The tree the woods. Humphries were from the road. The hung fifty seventy-five yards crowd took the there tell Humphries out them to where get tried it; Patterson was, and didn’t do them if they they crowd told didn’t tell them them; tell, would they didn’t hang Humphries just them. naturally hung They tied around their ropes necks and tied tree, it to a put Humphries some horses and up drove horses out under from I never them. saw touch the horses only *4 Wilkerson; hit I Joe he one horse. didn’t do Polk anything. Weeks I tied the around the tree. didn’t ropes feet, see tie their anyone up but their heard said about feet the something touching ground, about them I but didn’t see who it was. somebody tying up, spoke north, After were dead we went home. road they We went the right up o’clock, I and then west. home got turned about 3 later than maybe that. Arthur went home Polk Greenhaw with me.” Weeks’ testimony is to the effect. same only
Defendant’s defense relied alibi. Over his objections was upon 1898, the State by Jim he was in proved February, Sullivan that in the Athens, Texas, of town to Joe and was there introduced Wilkerson by Rice; E. J. in a that had with at that time conversation Wilkerson Wilkerson him that there some prosecuting persons told he was at court it,— for his for stealing hogs; revenge if the law did not him give that is, "himself; for the theft to it was take his hogs,—he going thai deceased, he was said he about the talking people, Humphries limb, he wanted was to make the look and that going sons bitches aup but him; some of us no one was present fellows at Athens to help Rice, Wilkerson, and witness. Bell, substan- J. A. who testified State also introduced witness County, in Henderson September, That at
tially: Grady’s gin, 42d Texas Criminal Wilkerson, he with none else and Wil- had conversation being present, to be out of the ought country; kerson said that Humphries put see they to be and that he was to they ought hung, going were had asked huug. Witness Wilkerson (meaning deceased) he the outfit ought about his case with and in said Humphries, reply to out and ought hung. be put introduced substan- Witness Dave testified daymans, June, 1898, County, about 1st of That in Henderson tially: he had a conversation with Joe Wilker- year prior lynching, Rhodes, son dead), of John and Wal- presence the constable (now Wilkerson, and, and Joe thinks, accused), ter he Bill Brooks (two his boys' to witness about the Humphries stealing Wilkerson talking them not steal said when he would hogs, through they got more; that he had them in court for any stealing hogs. E. substance, That on morn H. Garrett:
The State proved first Joe ing Saturday April, speaking Wilkerson trans-cedar was at that time justice peace witness (who trial or case of and said Humphries about the hog-theft country) said that would beat Humphries some people to witness: “That him, “Yes, would, that they case,” and replied thought witness said, then time.” When Wilkerson it beat at virtually had they in this mob law country.” it would cause “If cases did beat their and near precinct in his (witness’) occurring said conversation but witness Wilkerson. and no one else was Aley, present be- Defendant Wilkerson, of these objected proof declarations cause was irrelevant, and not incompetent hearsay binding that a Stevens; at the time had not been shown conspiracy acts and it had and declarations made on the part anyone, homicide, and been shown to at time day exist prior declarations, all, at acts and could binding only binding against Wilkerson, Joe and besides were not made furtherance a common certainly not with defendant anyone, and design agreed upon (cid:127) Stevens. Woods, Allison, Russell, Muse, & H. Gregg E. B. J. S. Starr Stillwell Brooks, Faulk, & attorneys appellants. Faulk & *5 de-
The court for, by erred the motion severance made overruling affidavit, fendant and his to have codefendants, six their by supported trial, John and Arthur Polk first on Greenhaw and Weeks put to Green- overruling individual motion and affidavit have trial, haws and Weeks first all things on said motion and affidavits put with the law—which two will treated complying assignments one assignment.
There is no counter or de- or motion contesting affidavit scription filed State to the and affidavit individual motion 1900.] 159 v. The State. State, 597; State, defendant Stevens. Shaw v. 45 S. v. King W. Rep., 282; State, 34 S. W. v. 408; Code Rep., Wiley Rep., Crim. Proc., 630, 37, arts. 707-710. threats, or acts declarations of one defendant not joint ought to be introduced another defendant unless a con- ratified, exists to which that other or spiracy defendant belonged, such to declarations, acts and must be furtherance competent, a common design.
If the court lets in the acts and declarations a before codefendant a established, testimony, is conspiracy, finally and the testimony fails show a it to is the conspiracy, duty of the court to instruct to consider said acts and declarations for any Menges purpose. State, v. 25 711; State, Texas Crim. McKenzie v. 25 App., S. W. Rep., 428; Luttrell v. 505; State 31 Texas Crim. State, Crook Rep., 240; Texas Crim. Martin 30 S. App., W. Smith Texas Crim. App., Arnold v. 9 Texas Crim. When the issue in is, a murder principal case who committed homicide, the entitled to introduce evidence tending some prove person the guilty party.
We from the copy bill of a following exceptions, which full gives statement of the case to this pertaining to wit: particular question, it remembered that “Be on following the trial of said proceeding witness, Greenhaw, cause took The State’s John place: was testifying cross-examination, it under all upon competent, the circum case, the. stances connected with to admit the evidence. Because (1) it showed the declarations and animus on the of Gardner to com part mit It crime in an question. showed association (2) and connec animus, tion at that time with the purposes and declarations John Greenhaw. evidence showed (3) those familiarity with that he John Greenhaw and had adopted declarations and pur as his poses Greenhaw own in himself witness seeing making the same proposition him. to show in of de tended (4) support It fendant’s theory collusion It between Greenhaw Gardner. (5) tended to show that at time they in concert and were principals were in the agreement and mob. There was conspiracy (6) nothing show, testimony show, in the interval that tended Dutch Gardner was terms friendly friendly deceased or had been on with him that wrould the idea either that convey remotely indirectly, they never had such a or if it been aban conspiracy, had existed had doned, etc., their it was becoming contrary friends. But shown that Greenhaw claimed that the stolen his hogs had Humphries all along Patterson, man who suspected Greenhaw Humphries had harboring, threatened life Greenhaw the very day that had threatened kill and did kill the constable Bhodes. And it was in further proof Greenhaw and Gardner like brothers in their it is and had friendship, been for therefore years,- *6 42d Texas
160 Criminal that enmity inference Gardner shared with Greenhaw his legitimate insists that these mat Humphries. Defendant reasons are toward to show that Gardner of inducement tend and Greenhaw ters in an as between themselves to mob actual concert agreement in others, enlist the and to “ramrod services caught Humphries off on others.” He insists of Thomas as testimony the crime that, taken in connection with competent, to what Gardner admitted, other evidence it letter and tended support rejected he at least of the victims the theory scheme, and material and relevant for the sufficiently their plot consider, in view of all the circumstances connected to hear the confession of Greenhaw and the instrumental surrounding with and in the same Defend having of Dutch Gardner made. and interest ity and the material, is, rejected testimony the letter ant it says Thomas, it asserted the State repeatedly for the further reason was “somebody trial in the presence hearing jury, during we have did and if fellows whom caught mobbed the Humphries, connection, in Therefore this let them show us who did.” it, not do that circumstances were relied connect when is considered a reason crime, the tended to establish defendant with the it; hypothesis others committed and the able have hypothesis might as herein advanced and inconsis with defendant’s theory be consistent the court sustaining guilt. Whereupon objections tent with his the letter and to admission of the to the admission of the State witness, Thomas, to be shown as to what supposed testimony him, the defendant’s counsel excepted Dutch Gardner days tenders this bill ten action the court and within ruling trial signed of defendant’s motion for new overruling from the State, Texas Crim. the court. Dubose v. 10 approved counsel and State, State, 355; 20 Texas Hart v. v. Crim. 230; App., Mclnturf App., 204; State, v. Crim. App., Kunde Texas App., Crim. his malice as in the given definition of The court erred express charge. words, clause of the sixth uses these charge “express court sedate, mind, a murder is
malice exists committed with deliberate where of a to kill design and in formed previously person pursuance 242; State, Pickens v. killed.” Crook Texas Crim. App., 824; 55 S. 13 Texas Crim. Harrell W. App., State, 5 Primus v. 2 Texas Crim. Sumers App., of “malice in its in its definition afore- The court erred thought.” of his in the fourth clause malice afore- defining “Malice is a following language: uses con-
thought aforethought another, one man an intentional does injury dition of mind other, is to be in- disregard legal rights willful *7 161 1900.] v. The State. from ferred acts committed words It exists spoken. when does excuse, extenuation, a cruel act voluntarily and without justification or and does not include hatred toward- the necessarily injured.” person State, 738; State, Cahn v. 27 Texas Crim. v. 14 Texas App., Hayes State, 357; Crim. 331; Pickens v. 13 Texas Harris App., Crim. App., State, 8 109; State, v. Texas Crim. 8 v. Texas Crim. App., McKinney 627. App.,
The court refusing erred defendant’s instruction give requested effect, that the mere at of defendant did not presence hanging thereto, make him a and the court erred in not a party giving murder in the second degree. 1. That he be at can the crime and not it: present party be a Texas, 713; 282; v. v. 42 State, State, Texas, Burrill 18 Ring Jack State, State, 190; son v. 20 Texas v. 18 Crim. Golden Texas App., Crim. App., 2. That court should on every theory defense.: State, 236; State,
Rutherford v. 15 Texas Crim. App., McLaughlin 63; 10 Texas White Crim. Crim. App., Butler 33 Wier v. 29 S. Rep., W. Rep., State, 53 1074; Red v. S. W. verdict, After the a before returned jury impaneled, services room, courthouse, held in district court at the were under the M. A. The aby Y. C. attended auspices jury invitation. special Chandler, R. M. The affidavit of the is as follows: juror, “The attended the Y. M. C. A. on Sunday return preceding of the verdict. there was We heard be such a going meeting went; heard the sermon Rev. Mr. I Alexander, we in heard were be I invitation; vited to but did not hear the present heard all the sermon. Said there were tragedies enacted in our State in our sister went county; it I say what would to. bring people recollect -mob; don’t I mentioning he but don’t it. may, remember said, He from home on people drawm account these tragedies. I can’t whether he say had reference those Stevens’ trial attending here; s_aid had been drawn had been enacted in tragedy our State and sister county, and had been drawn here. I people don’t remember trans-cedar was mentioned. I recollect he said that widows and were being made these It orphans tragedies. to me occurred he was to the widows and alluding orphans made the Henderson mob, as as all County reckon, well I tragedies. Preacher preached, half hour. better; an He was just do did exhorting people talk on crime. sheriff told us we particular could present and heard He Mr. Alexander. never mentioned never jury; turned Friday evening around towards us. On before of the return Saturday he verdict, the sheriff had orders to prepare boarding place Yes, I it for us in Athens for twenty days. understood that would after,, this court ne er how we before adjourned. We discussed stood Rep.—11. Yol. Grim. 42n Texas Criminal submitted we counsel was After the case was heard. argument ballot seven for
first stood six on the second we stood for acquittal, the same the case to us. I can’t given That was acquittal. night sheriff he had Thursday Friday whether was when the say it board for us for in Athens. twenty been ordered to have prepared days Saturday. 11:30 or 11:40 verdict Brought board, “The spoke sheriff when just laughed twenty days back, it "was a Mr. joke. and said he took remarks of Rev. at me. We refer Alexander had no all with did not to it weight *8 our verdict. The case was not him making of Stevens referred to by at all. I said this to defendant’s morning, (Re-direct.) talking counsel, statement, that in the motion new trial, in reference correct, to the statements made Rev. Alexander were substantially that refer to not he did not or address the he did except jury, and that about mobs. He in such say said that men anything engaged that mind, course, was on would be after death. tragedies punished My then, at case before time. His that. speaking tragedies mind The revert to it. Mr. Alexander talked loud earnest. my was us I including officer that had he was present charge. thought mob, Yes, mobs. the sheriff was well as other (By court.) us, in our instructed the court not to to talk to or anyone permit I was close.” kept very presence. Walker, is of the J. T. “On Sun- juror,
The affidavit follows: Y. submitted on at A. Wednesday, preacher before the case M. C. day, causes; trial used had been used all week for said said courthouse God; said had for the to-day worshipping tragedy purpose great effect; said sister or that county, something been in our committed better, said all to do ought try many strangers present; great better to hold their hands. He said all that would do up call on committed; crimes; what caused sin was the said said a crime had been home better would to do cause; strangers go try said he hoped attention; recollect I did don’t erect a altar. not much family pay about children. he anything orphan said defend- Alexander to.the crime for which “I Rev. referred thought Y. M. trial, The among secretary ant was on crimes. A.; Y. him to M. C. bring A. met sheriff and asked if he could jury C. would bring, seats said would reserve the for them. he jury Sheriff lock one started to to the Sheriff time and did us bring meeting. the 20th to arrangement told him about make us said the judge up; that, I did If at Athens. the sheriff corrected for board for the jury we got Alexander commenced about 4 and talking hear him. not m. I never about the matter at thought reporting out about p. the judge. I don’t lecture; it had no influence on me.
“I sick day was his lecture to influence us or not.” whether Alexander intended kuow A., of Y. M. is as follows: Bryan, .secretary The affidavit of S. J. C. State. 1900.1 * * * I him sheriff have the present “I invited invited jury Alexander crime Friday night. referred to and said it was the of sin. I don’t remember his about consequences saying anything never held of this kind meeting before in I strangers; courthouse. he said. substantially anything can’t state One text was that the ‘Wages he Death;’ did not use the of Sin Is word Some tragedy. out at
when we door that Alexander were did not going know mob; not mention He did jury preached a present. sermon spiritual did preacher on sin its not effects: know jury present; did not refer to the trial in any case on or form. can’t recol- shape .1 said, all he lect he but did not refer lynching cases.”
-The affidavit of I. is as follows: Alexander Alexander, who, I. sworn, “How comes fol- being duly testifies as : lows “I. Alexander is the minister says he who lec- preached, or tured, 31, 1899; in the courthouse Sunday, December he did know the in the Bob Stevens ease said courthouse. present lecture, case, That he did not the Stevens preach, concerning mob, Henderson County any other mob. That did not say crime had been great county, committed a sister nor that the guilty *9 be nor should did he party say mobs were caused punished; by sin; nor that were free people from sin would be more there no violence; mob mobs and nor did he say that those who were ought guilty nor he brought did justice; say the widows and orphans County from Henderson were made so by law; red hand of mob nor he for any arrangement did know jury to at said present says service. Affiant further that he no mobs, reference at all to violence, box, mob or jury manhood or the sin suppression of laws; enforcement nor did he say of that char- anything said, acter; nor was anything directly or indirectly, about the trial of or of other any trials. And he Bob had no intention of having influence on said jury. any “I. Alexander. me, to and subscribed
“Sworn before this the 13th day January, 1900. D. C. Scarborough,
“Geo. men, each aforesaid six “That last named who were a part case, testifies, in the Bob Stevens himself, each for jury that he was the date on mentioned and Dr. lecture, heard Alexander’s present no influence lecture had whatever that said verdict. And not mention Dr. did mob violence or law; Alexander mob made no trial of Stevens reference to the person connected eases, County nothing the Henderson whatever about manhood he about box, say in the did anything nor enforcement sin, nor say anything did calculated law to us influence suppress 42d Texas Criminal 164 lecture, sermon, in our other six verdict. The absent. jurors box. anyone was not mentioned in the jurors Cofeey, W. “G. (Signed) Chandler, “R. M. Walker, “Tom Eagle, L. “W. Yates, “J. S. “Hardin Perkins. 13th me, day January, subscribed before “Sworn Scarborough, D. C.” 1900. Geo. Texas, her district denies attorney, “How comes the State of for fact defendant’s motion all in said singular allegations trial, of same. herein, strict proof new filed and demands made a hereof. attached and part of minister and six jurors “Affidavit Crook, “J. M. District.” Attorney “District Third State, 7; Proc., Mitchell v. art. and art. subdiv. Code Crim. 570; Texas Crim. 457; State, App., 36 S. W. Defriend v. Rep., 121; State, v. Burris v. 40 S. W. State, 28 Texas App., Crim. Kelley 285; Darter v. 44 S. W. Rep., alibi in refusing The court erred in give failing instruction subject. defendant’s on that to give requested defendant, relied on only His defense alibi was in rebuttal to the alibi and incidentally only as to identity arising State, 21 Oxford Texas Crim. App., v. Ayres evidence. State’s 272;.Rider State, 26 v. Crim. Rep., 645; Anderson 14 Texas Crim. App., Davis State, 34 Texas Crim. Rep., John, Attorney-General, Assistant
N. B. Morris and Rob’t A. *10 State. for of killing codefendant the against
The prosecution appellant’s not in the court of Anderson and.the County, pending Jim Humphries and ac against being regular of venue cases change appellant statute, abuse of the discretion the lodged judge to the no cording State, shown Crim. the venue 41 Texas being (Nite for changing State, Texas 41 Crim. the record 340; 467), Cannon Rep., Rep., cases codefendants the time against ap that the at companion showing the case called trial was him arraigned was pellant forc form, the another different severance and granting first, have to trial necessity codefendants would of ing appellant’s 708, a This is in contravention of article specific caused continuance. to the that remedies appellant guaranteed which asserts right The State. Stevens v. 1900.} article, are by contingency conditional that absolutely upon the exercise of that It is will not cause a continuance. no answer right contention, to this over that of venue was made change appellant’s others,— based protest,—the protest being proposition, among codefendants, has it forum from that of separated appellant’s 708, under and therefore defeated his severance right article because forum, made no such' insistance in appellant original and no effort to forum, obtain a severance was in that but presented appellant until, statute, his under the terms delayed he was not motion entitled the same; his own laches in by not the motion making above, for severance until after the of venue as his change rights 707, 708, See lost. arts. Code Crim. Proe. It is submitted the State that by articles 707 and 708 are to be con strued together, and the a right of severance and order of trial is right guaranteed when the appellant only order of trial is agreed upon themselves, or at among least where the record is silent as to any dis or protest codefendants, pute the trial of which appellant seeks to advance. The State submits 708, that article when says, the codefendant whose case is to be sought advanced, protests or dis first, have him appellant’s right tried putes then the matter within the discretion of the lodged court whose it is to duty determine of trial. order contends that Appellant the right codefendant is based and exists solely upon ground, when the only codefendant will 707, make indicated article the oath which would cause the protest in order to codefendant, ing prevent appellant from him into forcing first, innocent, trial to swear appellant at least there was not sufficient evidence encompass conviction. The codefend oath, truth, ant not able to make because it is being would in that event be robbed of his privilege first, having appellant tried shown and clearly be although might might apparent made, court that 707, oath complying article absolutely event, false. Courts of would in such justice the construc correct, law, tion be forced the terms of urged to reward per them, those whose to the truth punish fidelity al prevents solemnly protesting, from tried first. The though having appellant codefendants, submits that between the under article dispute State 708, 707, which should construed with article defeats absolutely ap as matter have his codefend pellant’s right arbitrary right ant tried first. This State insists has been decided. Arts. specifically 708, Proc.; Parker v. Code Crim. Rep., 32 Texas Crim. Chumley Shaw v.
Crim. Rep., Greenhaw, The court excluded the letter written John properly he was in to his wife. There is no con- while jail, absolutely *11 homicide, Dutch with the Gardner remote necting vague and except threats, which the theory witness occurred appellant. testified homicide, over three '-ears before the to and the evidence is too remote 43d Texas Criminal [.Austin. in the admissible. As to tile correctness of ruling become Wilkerson, of Joe co- the acts and declarations defendant’s admitting : defendant that a cocon- is a well settled rule of law the declaration of
That the absence of on trial is in admissible against spirator the. if that defendant, made of the common pursuance that design, time the at what codefendant entered the it is immaterial conspiracy. is, of the rule estab- that a been design That philosophy having issue, to commit the crime those who the forma- lished to subsequent its tion of the and who know enter into scope design perhaps their become this criminal and make parties copartnership adopt their own the declarations of it occurred although acts and partner, And their absence anterior to their connection with the same. while there still it that is no case exactly being unquestioned point, where two or more have who subsequent formed a design, person same, its formation to the is with chargeable become a agrees party connection, all that of this was said done anterior to his logic is, rule that this act introduced in evi- should even apply, though dence or the word declared was said or done an individual who at by which that time was alone and who had in his head only design afterwards was entered into others with him to commit the contem- by crime after it consummated. plated admitted, The evidence was and was re- unquestionably properly codefendant, the court to show the stricted animus of appellant’s Wilkerson, one of the issues of the trial what was being, purpose, and the extent scope conspiracy very corpus words, involved in this case demonstrates. In the fact crime was formed several the Hum- conspiracy parties hang then, Now without evidence of acts done and goes dispute. phries Wilkerson, is words said Joe who shown be the leading spirit mover, its are evidence which will prime the conspiracy, originator character, extent of to show the purposes conspiracy, go the case at bar contends that participant the State in appellant as the State contends then, in. Now so acted and an actor appellant Wilkerson, certainly State the said Joe his design, knowing Wilkerson, though previous the act of Joe even entitled to nature; conspiracy, in order to show the character agreement in- to show Wilkerson’s and the of the same. Evidence scope purpose him with knowl- was acting by showing tent and same. This adopted intent showed of Wilkerson’s edge to- those who act of principals, in this State the statute the law State, 33 Texas v. Trials, Cline Rex v. 34 St. Hardy, gether. 431; Harris State, Rep., 33 Texas v. 483; Armstrong Crim. Rep., Texas Crim. State, 31 v. Smith Crim. Rep., 347; Cline v. 33 Texas Crim. 103; Blaine State, 19 Texas Crim. App., 347; Kennedy 34 Texas Crim. Rep., the court in reference submits The State *12 167 The State. v. 1900.1 others, Johns, Wilkerson, prop- and declaration of the coconspirator declarations of these the admission and with limited erly emphasis itself upon indicated; the State above and plants purposes insists involved, and of tire law fair court’s as a charge presentation itself than the law to defendant that it rule more favorable presents authorizes. same court, rule that
In a discussion of the charge rule invoked, the further is with together is to be construed as a whole in his charge authorized to assume certain that a is equally judge test no as a absolutely dispute, there is existence of facts about which State, 35 Texas which Holliday in this case. applies everything 442; O’Connell State, 36 W. Rep., Crim. Hudson v. S. Rep., Texas, 18 correct, that is If it be of the State conceded position facts trial court assume the existence undisputed has a right whosoever on the evidence, the fact that then the State submits revolvers, winchesters, and 1899, of the 23d of armed night May, the home of the de at the hour of invaded shotguns, night dead ceased, took authority without or the cover authority possession subsequently and searched his over protest, premises, home, out of his law deemed hH force of arms him dragged known castle, him the most death ignominious inflicted finally upon of murder mankind,—that upon the actors in this tragedy guilty to force him malice,—whether was merely express original design Patterson, or whether the original to disclose the whereabouts of one event, In man, is immaterial. either the murder of design committed of murder in the first de this crime were guilty those who State, 36 Texas Mitchell v. gree. correct,
If 723, this be then article which asserts certainly court, of the will be for reversal erroneous, although ground unless the same was calculated to defendant. injure rights The State submits that the “calculated to injure phrase rights conceded, error defendant” means an was such an error that in all prob- How, then, contributed to conviction. State ability appellant’s that, insists even that the definition of the trial conceding argument erroneous, court of that the malice and of malice were the fact express murder was malice undis- committed some one upon express being this error puted, appellant’s injury. could have contributed Proc., White’s Code Grim. art. therein cited. authorities (cid:127) State, however, malice, contends definition express murder, of malice and of "all considered aforethought, together, gives definition of these terms. The definition of malice proper express case, the same as in Crook’s substantially cited approved appellant’s brief. Crook v. Texas Crim. Martinez App., defines malice to be clearly 30 Texas Crim. 129. The definition act, without the intentional of a doing wrongful legal justification excuse; and the definition statutory; the definition of murder being 42d Texas Criminal malice express murder, referring of an the idea unlaw supplies ful killing, calmly committed, formed deliberately upon design,
which is upheld case, the Crook supra. As to the charge does accomplice, specifically *13 emphatically inform the that the corroboration must be jury other than the corroboration of an or accomplice in effect tells accomplices,—it the with jury and tells them so could emphasis, not they be misled or could not misunderstand the the proposition, evidence of one ac- could not complice corroborate another. this charge presents phase with more than was in the emphasis case, presented which was term, court. Dallas upheld by Stevens v.
The charge upon alibi in the True, Stevens case the is sufficient. does not alibi, but philosophize technically upon the defense in plain -unmistakable terms it in the issue presents and presents almost the exact language heretofore court. The doc approved the trine doubt, of alibi is after all but the doctrine of and all reasonable can be the attention of required is to call the specially the to the jury reasonable the alibi doubt as it pertinently applies insisted by defendant; the must they and when he tells jury find his at the the the presence beyond time and homicide place doubt, reasonable in the whether he was they present, event doubt favored method to they concisely should is the acquit, approved of alibi. Caldwell present defense Judge. BROOKS, returned The grandjury County Henderson Wilkerson, Brooks, Wilkerson, an indictment W. B. Joe W. against Hall, Johns, Gaddis, Sam A. Bob Stevens and John W. (appellant), 1899, or about the 23d of in said they May, “did on charging malice kill and murder Jim county, unlawfully and with aforethought, him with a At by then and there Humphries, hanging rope to tree.” same term of of the above in the court each parties separately indictments, for the murder of John dicted two different and George Polk John and Arthur Greenhaw and Weeks were sepa Humphries. bills, indicted in three-several each murder of charged rately term of the John, Jim, and At Humphries, September George court, motion, of its own County District Court Henderson Arthur defendants, the venue of the John and Greenhaw changed except Weeks, cases, in all and Polk of Anderson the District Court Weeks, John the con and Arthur Greenhaw under County. and Polk evi tract with -the district turned State’s through attorney, and, dence; the venue of indictments the various murder changing mentioned, above transferred an indictment merely against each of said last named to Anderson wherein parties County, the murder of George leaving charged respectively Humphries, indictments for the murder of John and Jim Humphries, respectively, still in the District Court Henderson pending County. Appellant Stevens v. The State. 1900.J County, in Anderson after the venue was was found changed, tried in the first and his of murder assessed at con- degree, punishment guilty for life. penitentiary finement first assignment error complains that court erred
Appellant’s motion for severance between overruling defendant his code- fendants, affidavits, their supported by have two Greenhaws and trial, first and in put overruling Weeks individual motion and affidavit to have said Greenhaws Weeks first on trial. put Arti- Procedure, cle Code of Criminal provides: “Where two or more for an offense prosecuted defendants out growing same trans- indictments, action, either file separate may his affidavit writing one or more parties are an offense growing indicted out of indicted, the same transaction for which he is that the evi- affiant, dence of such parties or material for the party defense and that the affiant believes that there verily sufficient evidence whose evidence is party desired secure his parties *14 conviction, or their such party parties whose evidence said affidavit tried; made first be and in the event that or more defend- two shall affidavit, ants make trial, such and can not to of their order agree then the presiding shall the order in the judge direct defendants tried; shall be not, that the of such affidavit does with- provided, making out cause, other as a continuance to either operate party.” sufficient Each of the several motions of in all with appellant complies respects the conditions and of this article. provisions of the Upon filing motion is not to be (which necessary said two quoted) Greenhaws and Weeks an affidavit, filed and denied the facts stated in the affidavits defendants, them, said joint effect that the (1) testimony them, or either of at all defendants, material the other would them; them, either they, that and each of were members of the (2) Jim, John, mob that murdered and that each Humphries, George mob, motion parties said was also member of said and assisted in that each them murdering said had heretofore Humphries; (3) motion, to the effect that said filing testified said with parties together defendants, these the said three Humphries, murdered them hanging in indictment; time charged about the that affiants (4) ropes, officers, her if through they had contract with the would proper murder, the facts said testify, stating concerning whenever truthfully shall after all of said discharged called that defendants upon, they of; shall tried, finally disposed have been or their otherwise that cases faith; have said contract was in decided they keep good all against in each and trial other faithfully, testify every same murder, and ask indicted said persons principals accomplices In that the other defendants be on trial first. addition to the an- put witnesses, attorney swer of the three State’s the district also filed defendants, and, among answer to the motion of said joint and protest for trial is That case called indict- states: said things, “(1) {Austin, 42d Texas Criminal ment the defendants in said motion with the murder of Jim charging That there is no ease in the District Court of Humphries. pending Weeks, Anderson the two Greenhaws and County charging that the facts stated in said motion to the effect murder. That the (2) defendant, would be material witnesses for and Weeks two Greenhaws true, are not and defendants first be tried and acquitted, should they swore to true when subscribed and said affidavit. they knew were not they in said motion further that defendants stand says charged The State (3) now in this for the murder pending in three several indictments it is not Jim, John, Óf George Humphries, respectively, one and motion, murders constitute true, that said as stated mur- but, hand, are three offense, law, separate on the other they same in the affidavits contract, has a as stated That the ders. State (4) of which Weeks, the terms and conditions under two Greenhaws and under testify, evidence and to turn State’s the parties agreed final released on of which are to be subsequently they conditions in the answer There is nothing of the other defendants-.” discharge is a attorney legal district and Weeks the two Greenhaws except made by appellants, for severance defense to application State, through proper with the subdivision, a contract alleging fourth which the Greenhaws conditions officers, the terms and under they provided further prosecution from any to be released Weeks to said mur- facts pertaining all the concerning truthfuly testify shall of the affi- finding the time up further state They ders. contract, ready and stand their part complied had they davits trials, testified the examining theretofore had testify; of guilty participation instance all of the defendants each accusing an- it, is a This, complete take three we murder of the Humphries. *15 for asking other and appellant, defendants to the application swer A. and is this: all verbiage, The proposition, stripped a severance. truth- to testify attorney A. the district kill agrees B. jointly released from homicide, prosecution is to be B. to the as fully against the truth. truth, but truth, nothing whole if he will tell the 278, that case, Criminal Reports, in Greenhaw’s We held attorney, represent- the district contract between a continuous be would on the evidence State’s side, turning and the party on one ing Greenhaw of said contract conditions other; and, the terms and under ready or stands complies, as he long immunity is entitled to perfect true, This being of the contract. letter with the spirit to comply, 707, article conditions the terms and B., an under affidavit by filing first, because of A. trial Procedure, not force the can Code of Criminal evi- turn State’s to contract under the A. is free from any prosecution, an affidavit B., by filing that say be to otherwise would To hold dence. of the contract force an 707, abrogation could thereby under article evidence. State’s turned A., had previously who the part article court, under therefore, moved hold, that when appellant We State. 1900.1 be and Weeks two 707, asked that the Greenhaws for a severance and strictly complied with done, they tried, although first not be this should them and district attor- article, the answers set up said in view of the district is shown between attorney wherein a ney, contract to turn State’s agree whereby they two Greenhaws and Weeks It from prosecution. recognized practice and receive immunity court, attorney may, consent permit this State that the district of crime to turn one more accused State’s evidence and use parties 37, 630, his codefendants. See arts. them as witnesses Code against State, 40 Proe.; case, Kicks v. Texas Crim. Rep., Greenhaw’s 707, Therefore, article a have sever- supra. authorizing" appellant ance, articles, does not these last nor one de- abrogate cited authorize first, fendant to have a codefendant tried when such codefendant has entered into a contract to turn State’s These statutes must evidence. be construed and when so can together, considered no conclusion be reached than that indicated above. do not think that the court We erred in refusing grant right of severance. This appellant being true, it matters not whether the indictments the State’s evidence witnesses remained in the Court of or the District Henderson County, venue thereof was changed Anderson County.
Appellant’s second of error is that assignment erred threats, acts, and declarations of permitting one defendant to joint introduced evidence against another defendant before a conspiracy had established the testimony, been and the failed testimony finally to show the It from the conspiracy. appears bill that the court per mitted acts, several witnesses to testify threats, and declarations Wilkerson, Joe the coconspirators and codefendants with ap pellant, about a to the consummation year prior of the conspiracy. insists that the does not Appellant show that proof pres threats, acts, declarations, ent knew of such being pres ent, he was not bound The State also thereby. by Jim Sullivan proved that February, occurred in (the killing May, Joe Wil 1899), kerson (appellant’s stated he was codefendant) prosecuting that “he Humphries hogs, and stealing make going sons of look bitches limb.” The State J. A. up Bell that proved by in September, he had a conversation Wilkerson, with said' which Wilkerson stated out of the Humphries ought put country; they to be he was ought hanged; see going (meaning deceased) simi also hanged. proved State lar statement Dave daymans, made Wilkerson about June *16 In addition to the was objection that not present, appellant objected all of said declarations on the that said further grounds threats, acts, declarations, if all, at be binding could binding only Joe Wilkerson; and, besides, against further they were not made in ance of common a not design agreed upon anyone, certainly with the State, defendant Stevens. In Harris v. 31 Texas Criminal Texas Crimiital 43d
172 character, a of this we said: 415, in question passing Reports, that, where a was entered substantially court charged conspiracy “The more, two or the acts and declarations of each regard into between all; and, when are acts and declarations purpose to the common formed, a act done every into conspiracy already one enters afterwards, in of the common de entry pursuance others before consummation, its is the act of the one so If and until entering. sign, a reasonable doubt that Harris and others beyond believes jury deceased, kill and defendant entered into formed a common purpose before the death of Shields, at time the acts and any the conspiracy and done in coconspirators pursuance declarations common after said entered into Harris and design agreement Shields, others, were admissible and before the defend killing against If enter into such conspiracy, ant. defendant did not should dis they It such on defendant’s will be ob guilt.” regard testimony passing we think it served that this the law presents approved, State, also v. to this character of See Smith testimony. applicable State, ante, 118. The trial 107; Texas Crim. Casner v. p. App., as to this “In this trial testimony matter as follows: charged jury witnesses has been admitted as to acts and declarations per sons in connection with with the commission of charged true, offense. If believe such you to be alleged testimony yet you it, are not to consider for the determine the character except purpose offense of such such declarations persons making doing acts, if and not in case unless from the other any, any you believe evi doubt, dence, a reasonable that defendant was in the beyond associated offense, of said if with such acts and any, commission whose persons to, declarations were testified and that defendant knew of and adopted declarations, if indicated such before the commis any, designs, offense, sion of This was a any.” limitation very apt proper character of If two or more form testimony. place upon parties act, to do a certain third enters into such conspiracy party of the same, after the formation the acts and declarations conspiracy made before comes into the conconspirators such party conspir acy clearly admissible where he against third party, adopts common If he not design, and of all. does so conspiracy, purpose adopt them, him, then are not admissible because do they to illustrate or serve make the common design, manifest purpose, intent actuated at the time the commission of the offense. The trial this character very learned limited judge properly admissible, for which it was purpose legitimately warned the not to consider it for See purpose. Kennedy State, State, v. 618; 19 Texas Crim. Luttrell v. 31 Texas Crim. 347; 493; State, State, Blain v. 33 Texas Cline v. Rep., Crim. Rep., Ich, 417; Crim. Cline Rep., Armstrong 36 Texas Crim. Isaacs Rep., *17 Stevens v. State. 1900.] a co- We the fact that think the established testimony appellant such, and being in the murder of the conspirator Humphries, triple or subsequently, whether entered at the of the beginning conspiracy admissible, as illus of Joe acts and declarations Wilkerson would all the common intent with which design, and trating purpose, of Wilkerson acted, and would be whether the acts Joe and delarations before or after formation conspiracy. erred in complains refusing court Appellant permit wife, introduction of a letter written J. T. Greenhaw as follows: 21, 99,
“June Hattie Well I want you to come here i at jail over tomorrow 22 am Corsicana you can come and me can me now stay with some now you get and stay awhile and talk time want to i want to see bad any you you come at once but done you say about it dutch is here with me anything he will hand it you he has with me like a brother we are stayed allrite don’t Hattie dont uneasy say anything
“J. T. Greenhaw “dont say about this.” anything objection the introduction of letter this on the part appel-
lant seems to have been to show extent of existing relationship between Gardner; witness Greenhaw and one Dutch it was the theory that Dutch Gardner and Greenhaw had formed plot plan crime; Gardner from exculpate connection with the inculpate himself turn State’s evidence was a part plot inasmuch as plan, witness’ connection with the same had become known. We do not think said testimony is admissible for and the court did not err in purpose, so Hor is ruling. testimony admissible as to show that going Dutch probably Gardner was coconspirators that he killing, was one the principal in the parties engaged killing. third of error is that the court
Appellant’s assignment erred in his “malice.” The defining given by is follows: “Malice is a aforethought condition mind in which one man an does intentional to another in the willful injury disregard of other, right's is to be from legal inferred acts commit- ted or words exists It when one does a cruel act spoken. voluntarily excuse, extenuation, and without justification, and does not necessa- * * * include rily. hatred towards the person injured. Express sedate, exists mind, malice when murder is committed deliberate and in of a pursuance to kill previously formed design person killed.” The same, usual definition we commend (and specially it has because been frequently approved follows: court) “Malice a condition mind which shows a heart regardless social bent on duty fatally mischief, the existence of is in- 42d Texas Crimikal
ferred from acts or words We think committed spoken.” definition given the court’s charge substantially agrees the definition just malice, But of quoted. concede that the court on as con- charge erroneous; harmless, tended is think the is by yet we same appellant, in view of the record before us. The issuable facts in only the case were these: The of or his nonpresence appellant, guilty participation This in a cold-blooded and deliberate murder- if being case, of “malice,” be erroneous the definition should not charge could no other of because issue for the State is injure rights appellant, the first submitted, murder in as degree, disclosed the evi- except by ’ us.' dence before brief, in his and also in his bills of exception, Appellant, lengthy of the of the court to sundry charges failure divers and complains give have him. We have examined all of said charges, requested court, not think read and examined of the and do thoroughly charge erred in of nor in refusing give refusing any charges, or man- of murder in the charge any phase second upon degree issues, wit, in the The evidence raises but two murder slaughter. of the first and alibi. If was at the scene degree appellant present himieide, charged in the commission of the murder aiding abetting indictment, how, loss to see under any phase in the we at a been, of of less case, grade he could have guilty any in this conceded, in- strenuously It as may the first murder than degree. not that of conspirators the original design sisted by appellant, if the of the State’s witnesses testimony yet, to murder the Humphries; believed, they is to be well reasonably corroborated) we think is (which the three Hum- of hanging formed the diabolical purpose subsequently how, way Then what tree, why, so. to the same and did phries used as a could be the conspirators intent and of previous purpose we are at a loss degree, second for a on in the murder predicate of C. out for the to take purpose If A. and B. agree to understand. not mur- unlawful, this is it is is,D. while him disclose where making out, after C. But getting der, suppose, as contended appellant. him, that accomplish purpose to hang proceed they agree C.; does previous hang and do ropes, themselves with providing the guilt in lessening to do have anything C. out taking purpose Hence the not. Certainly perform? they subsequently of the act in the murder on of any phase to charge err in refusing not court did or manslaughter. second degree the law did not charge the court complains Appellant full a charge as there not true, by appellant, It as contended alibi. framed. have been charge might in the court’s on this subject “relies form, usual state, appellant in the not trial court does not pres- he was means that alibi, defense case upon and, therefore, if find he you time and place, at that particular ent v. The State. 1900.] not not seen find him etc. But the court has present, guilty,” trial idea fit to embrace same in the “The wit: following language, could not be at the guilty charged unless was present offense, if if have a any; you commission reasonable doubt at the being present said Jim killing the defendant Humphries, distinct, clear, will him.” This is a acquit then and sub- any, you alibi, the law disconnected from and independ- stantive and, we charge, think, ent clearly part presents We therefore do agree law alibi jury. appellant the court. was not his defense charged complains
In bill number permitted sermon, listen to the minister allu- discourse made during *19 sion with which to trial of and the crime he stood charged. the appellant, matter, and, con in reference to this Various affidavits are pro and filed same, there is error say from an we can inspection such to of as was calculated the affidavit injure rights appellant. By the toto the of minister denies in contention that allusion appellant the charged, was made to crime with which is and other affi- appellant would, however, davits his. the We add that in course of trials support of this better jurors is much should magnitude kept together, and not attend to services where statements to be permitted likely to rights of defendant. prejudicial also that the court in
Appellant complains erred the venue changing from Henderson to Anderson and also County, erred in refusing recommit said case to Henderson In this we County. do not think there error. The court transferred having the cause motion, own unless is an there obvious and clear abuse of his discre- tion, statute, under the we will not review his action in changing a venue. For full discussion of this question, see Hite v. 41' Texas Criminal Reports,
The for our is only remaining consideration question sufficiency of corroboration. of testimony the two a accomplices makes clear case Their against appellant. statement is that to- appellant, with the gether others accomplices above, several indicated formed a to take the three out conspiracy and make them Humphries divulge whereabouts one however, Patterson. took Subsequently, homes, to a tree near their Humphries fastened around their ropes necks, dead, them hanged until in cruelest and rudest manner. testimony is by corroborated accomplices clearly and, connect with the tending offense, commission without detail, in as the corroboration the record before us is reviewing voluminous, there is sufficient very say we must corroboration to com- case, and no error in ply being law. Such appearing reversal, the is in record a all judgment things affirmed. requiring
Affirmed. 42d Criminal Judge. HENDERSON, to the result While reached. I agree criticism, I the court of is to some given subject definition “malice” defini an shows it embodies a substantial analysis believe the same a defined, wrongr is the intentional tion. “malice Ordinarily doing devoid excuse, act a heart totally ful without cause or and denotes just definition given of social bent on mischief.” From the duty fatally of an court, is act we that malice the intentional dding gather other, another, injurious disregard rights willful excuse, a cruel act another without legal and exists where does This the essential elements or extenuation. embraces justification, “malice of the definitions “Malice” and some suggested given. terms, some of are treated the authors convertible aforethought” Mr. “malice says effect the same meaning thing, though Bishop murder, an is alone and has aforethought” applicable mtenser'sig than definition of malice” in nification “malice.” The “express mere is a as follows: “Where murder committed with sedate mind, and deliberate of a formed pursuance previously design, it is malice.” Here word “unlawful” express murder upon omitted, and the word “murder” is used. back in the court’s By going murder, to a definition it will it is previous be found so; an etc.; stated unlawful this definition killing, bringing forward, we out the definition malice. killing make upon express this, It is matter of in as a case as regret, especially important authorities, where malice is should be so well we defined *20 under the determine in order to necessity construing not whether or of malice were and de- substantial elements given sufficient. believed, however, fined court. It State, State, 9; Harris v. Texas Crim. Martinez App., Crim. Crook v. Harrell App., 39 Texas Crim. 204. was overruled without a for rehearing motion [Note.—Appellant’s written opinion.—Reporter.]
George Brown The State. June 1900.
No. Decided of Prosecution. Defendants—Severance—Dismissal Joint motion, in strict made a com- the case for trial defendant When was called S., statute, his codefendant whose testi- severance from pliance with for a attorney prosecuting stated mony he desired. motion the answer to this In could then cross- and defendant State would use S. as witness either S., and defendant or he as to said prosecution examine him could would dismiss then, desired, over- sever was as a The motion him witness. use proposed but when ruled. called as a S. was witness to him and he witness, attorney case as to. was sworn and call the district dismissed him as Held, legal the action as a for defendant. testified witness