53 Tex. Crim. 480 | Tex. Crim. App. | 1908
On the 19th day of January of this year the body of Mittie Washington was found in Buffalo Bayou in the City of Houston in an advanced state of decomposition, clad only in an undershirt. A short time after this appellant was indicted for the murder of the said Mittie Washington, who was his wife. The parties had for some years been married, and until a short time before the death of the wife had lived in Colorado County. From the evidence they seemed not to have gotten along very well, and there was some proof that the deceased had carried on illicit relations with other men, particularly with one Buck Wicks, and that appellant had moved with his family to Houston with a view of escaping and avoiding the attentions of Wicks. It is his claim and contention that soon after their removal to Houston that one Chat Allen became too attentive to his wife. On the trial the State offered in evidence a written confession made by appellant under the statute in which he stated in substance that he had killed his wife about the 6th of January, 1908; that he struck her with a round stick of stove wood twice on the left side of the head; that soon after she died he and one Wells Gafford carried her body to the bayou and put it in the bayou. On the trial he became a witness in his own behalf, and testified, among other things, that he had had frequent disturbances with
In his charge to the jury the court under appropriate instructions submitted murder in the first degree, murder in the second degree, manslaughter, self-defense, and the issue of aggravated assault. In general, the charge of the court is correct and is in many respects an exceptionally clear charge.
We think, under the facts of the case, there is one error for which the case must be reversed. After submitting the issues of murder in the first degree, murder in the second degree, manslaughter, and self-defense, the court instructed the jury as follows: “Every person is presumed to intend the natural and probable consequences of his own acts; and if you believe the defendant intended to kill the deceased, and used means reasonably calculated to effect that end; then if you find his act was not justifiable, it was one or the other of the offenses concerning which you have been heretofore instructed, according to the state of mind in which the killing was done; but if you have a reasonable doubt whether the defendant meant to kill his wife, or have a reasonable doubt whether he used means which were naturally and ordinarily calculated to kill her, but believe that his act in striking her was not justifiable, and that he struck her with a weapon which was calculated to inflict upon her great bodily injury, you will find him guilty of the offense of aggravated assault and battery, and assess his punishment at a fine of not less than $25 nor more than $1,000, or by imprisonment in the county jail for not less than one month nor more than two years, or by both such fine and imprisonment.” We believe that this
“Under the facts developed, we are of opinion that the jury should have been instructed in conformity with the provisions of article 612 (now 717) Penal Code, which declares that, The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death it is not to be presumed death was designed, unless from the manner in which it was used such intention evidently appears.’ It was the intent which was the essential point in the case, and the jury, in arriving at it, should have been instructed fully in the provisions of the law which furnished the criterion by which it should be ascertained.” Now, in this case not only was there no charge containing the substance of article 717, but the jury were in terms instructed, that every person is presumed to intend the natural and probable consequences of his own acts. The proof showed that there was no sign of any wound on the body of deceased, though there is some suggestion in the record that decomposition was so advanced that signs of a blow might not have been observable. It is elementary and thoroughly well settled that the court must charge on every theory having any sup
We think in view of all the facts, and particularly in view of the charge of the court to the effect that every person is presumed to intend
Reversed and remanded.