166 S.W.2d 713 | Tex. Crim. App. | 1942
The offense is murder. The punishment assessed is confinement in the State penitentiary for a period of twenty years.
The evidence in this case presented two theories. That of the State was a wilful and deliberate murder, while that of the appellant was an accidental discharge of the pistol by which the fatal injury was inflicted.
The record shows that appellant and the deceased had been married about one year at the time of the homicide; that she left him and went to her mother’s home; that on the day of the killing he came to her mother’s house in a car and sought to induce her to come back to him, which she declined to do; that he spent most of the day at his mother-in-law’s home endeavoring to get his wife to go back and live with him. During the time that he was there he exhibited a pistol and pointed it at her but what he said could not be understood by the mother of the deceased, who was some distance away. About 5:00 P. M., while he was sitting in his car and she was standing by the side of it with her head resting on the door, he shot her in the top of the head and then hurriedly drove away to his father’s home, where he reported that his wife had been shot. The father picked up a “two by four” piece of timber and struck him several blows. Appellant then got in his car and went to Tyler from where he was brought back by his father and turned over to the officers.
Appellant’s defense was that the pistol was accidentally discharged. This theory was sharply contested by the State. Several witnesses testified to the trouble between them as a result of his unfaithfulness to his wife with which she charged him, and when so charged, he threatened to kill her.
By Bill of Exception No. 1 appellant complains of the action of the trial court in permitting the District Attorney, in the
By Bill of Exception No. 2 appellant contends that the District Attorney, on cross-examination of the defendant, propounded to him the following questions: (1) If it were not a fact that he had been married before; (2) that he had infected his.wife with syphilis; (3) that she had died from an operation made necessary by reason of having contracted such disease; and (4) if he were not then suffering from the veneral disease, to all of which he claims that he objected for the reason that the same were highly prejudicial and inflammatory and were calculated to prejudice the jury against him. This bill is qualified by the court, who states in his qualification thereof, that the first question was not asked in the form stated by appellant in his bill, but was in the following form: “Was that your first or second wife?” to which the defendant, without objection, stated that it was his second wife. The court certified that the second, third and fourth questions were not asked. However, the District Attorney did ask the appellant where his first wife was, to which he replied: “She is dead; that she died from an operation,” to which no objection was interposed and no exception was taken to the qualification of the bill. Hence appellant is bound thereby. The bill, as thus qualified, fails to show error.
“Now, if you believe from the evidence, beyond a reasonable doubt that the defendant, in a sudden passion arising from an adequate cause, as the same has been hereinbefore explained, and not in defense of himself against an unlawful attack producing a reasonable fear of death or serious bodily injury * * * did voluntarily shoot with a gun and thereby kill the said Ida Lee Taylor, the deceased, then you will find the defendant guilty of murder without malice aforethought, etc.”
Appellant objected to the following sentence: “And not in defense of himself against an unlawful attack producing a reasonable fear of death or serious bodily injury,” on the ground that it suggested to the jury that the only valid defense authorizing a reduction of the punishment for murder without malice would be self-defense, and that unless they believed he acted in self-defense they could not reduce the penalty. We do not believe that the charge is subject to the construction placed thereon by the appellant. It was not a charge on self-defense. It was more a defintion of murder without malice as provided by Article 1257c, Penal Code. We perceive no harmful effect from the language complained of.
Appellant next complains of the court’s action in declining to charge on the law of circumstantial evidence. This complaint, in our opinion, is without merit and we see no need for discussing the question at length.
The next error presented for review relates to the law of negligent homicide and in declining to heed his request therefor. In our opinion, the issue is not raised by the evidence. There were but two theories presented. That of the State was murder with malice and that of the defendant was accidental homicide. The State’s theory finds support in the evidence which shows that the deceased had declined to live with the appellant any longer. She had gone to the home of her mother to live. On the day of the homicide appellant went to the home of his mother-in-law, armed with a pistol, and sought to persuade the deceased to come back to him, which she declined to do. He spent a greater part of the day at the home of his mother-in-law in an effort to induce his wife to return to him. Later
No reversible error appearing in the record, the judgment is affirmed.
The following opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.