Ector, P. J.
This was an indictment for murder in the first degree, found in the District Court of Navarro County, against the defendant, for the murder of one Emma Dailey, on November 26, 1876, in the city of Corsicana.
Upon the application of defendant, a change of venue was granted to Freestone County. At the April term, 1878, of the District Court of Freestone County, the case was tried ; the jury found the defendant guilty of murder in the second degree, and assessed his punishment at seven years’ confinement in the penitentiary. A judgment was entered in accordance with the finding of the jury; and it is to reverse the judgment that this appeal is presented.
The statement of facts shows that Emma Dailey was shot in the city of Corsicana, in Navarro County, about the time charged in the indictment, between seven and eight o’clock at night, near the front door of her own house, the ball entering her side and passing through her body. She lived five or six days after she was shot, and died from the effect of the wound.
Three propositions were insisted upon by the defense in the court below, and are now in this court, to wit: first, [285]*285that defendant did not fire the shot which caused the death of Emma Dailey; second, that if defendant did fire the fatal shot, he did not intend to kill the deceased, and the killing was accidental; third, that the defendant was so intoxicated from the use of liquor at the time, he was incapable of committing the crime of murder.
The record shows that the defendant, in company with Ben Hamilton and J. P. Stately, was in the city of Corsicana on November 26, 1876, drinking. Late in the evening they got their horses from the rack where they were hitched, and took them to Collins’ livery-stable. Hamilton and Stately engaged in a game of cards, up stairs over the stable, Stately playing, for Brown, against Hamilton. Hamilton and Stately got into a row about the game, and Stately attempted to draw his pistol. Brown took the pistol from him, and kept it. After this, defendant invited the company— the witness Blackwell then being present with them — to go down the street to Fryer’s saloon and take a drink. The next building south of Collins’ livery-stable is Mollie Tompkins’, the next is a vacant house, and the next is the house in which Emma Dailey lived. Fryer’s saloon was still further south, on the next block.
The statement of facts directly shows that Mollie Tompkins and Emma Dailey were lewd women, and that defendant knew Emma Dailey and her house. On going down to Fryer’s saloon, in passing the house of Emma Dailey, defendant stopped, knocked at the door, and asked to be admitted; and, upon being refused, said he would kick the door down. The four went on to Fryer’s saloon. While there, the defendant had a pistol in his hand, and the witness Blackwell testified that defendant there said “he had done everything except steal a wagon and kill a woman, and that he would not be satisfied unless he killed somebody before he went home.”
After leaving Fryer’s saloon, these parties returned to Col[286]*286lins’ livery-stable and stopped in front of the stable, some of them taking seats on a platform north of the stable-door. About this time Emma Dailey came out of the house of Mollie Tompkins, and was going in the direction of her own house, when a pistol was fired by some one of the party at Collins’ stable, and Emma Dailey was shot and mortally wounded. She was then about sixteen steps from Collins’ stable. The moon was shining; one of the witnesses says it was a bright moonlight night; another, that the moon was shining, but not very brightly. The defendant was, shortly after this, arrested by a city policeman, some forty or fifty steps from where deceased was shot. This policeman testified that defendant, when arrested, was considerably under the influence of liquor, “ but not too drunk, in witness’ opinion, not to know what he was doing; he would call him about half drunk.”
The evidence, we think, is sufficient to show that defendant shot and killed the said Emma Dailey.
Upon the question as to who fired the fatal shot, the jury were properly instructed that this was a question for them to consider, and that if they had a reasonable doubt of the defendant’s having done so, they should acquit him, and look no further into the case.
The first error assigned by the defendant is that the court erred in the following portion of the charge, to wit: “ When the fact of killing has been clearly established, and it has not been shown to be the result of accident, or to have been done under such circumstances as will, in law, mitigate, excuse, or justify the act, the law, in such case, implies malice without further proof, and makes such killing murder.” The defense says that the errors in this instruction are:
“1. That it makes malice a presumption of law from a given fact—the killing alone — instead of an inference of [287]*287fact, which it always and necessarily is, as to its determination in any real case.
“2. It shifts the burden of proof upon the defendant at a given point — the isolated fact of killing — when, by law, it is never shifted, and when in this case there were various facts and circumstances in evidence in connection with the killing, and some even testified to by the State’s witnesses, which tended to refute the presumption or inference against the defendant, and such charge in its application to this case was calculated to mislead the jury, in causing them to find the defendant guilty of murder, without looking further to the proof before them than the fact of the killing, unless it was shown, on the part of the defendant, that the killing was the result of accident, or was done under circumstances that would, in law, mitigate, excuse, or justify the act; and in that such portion of the charge in reference to circumstances of mitigation, when taken in connection with other portions of the charge on this question, restricted the jury to the consideration of excessive drunkenness as a mitigation of murder in the first degree to murder in the second degree only, and to negligent homicide, and in this respect is not the law as applicable to the facts of this case.
“ 3. That it is a charge upon the weight of evidence,” etc.
The counsel for the defendant has discussed this branch of his case with unusual ability and research. We do not concur with him in believing that there is any error in this portion of the charge of the court. The court, in its instructions to the jury, defined murder in the language of the statute. Pasc. Dig., arts. 2266, 2267. The jury were properly instructed by the court, in case of homicide, under what circumstances the law would mitigate, excuse, or justify the act. It gave them the legal definition of malice, and the distinction between express and implied malice.
[288]*288- A careful examination of the entire charge is necessary to understand how fairly and clearly the jury were instructed upon every legal question that could arise on the facts, so that they were able to find an intelligent verdict.
Our Supreme Court, in the case of Farrer v. The State, 42 Texas, 265, says: “ It is a familiar axiom that every one is presumed to understand the probable result, of his act.
Free access — add to your briefcase to read the full text and ask questions with AI
Ector, P. J.
This was an indictment for murder in the first degree, found in the District Court of Navarro County, against the defendant, for the murder of one Emma Dailey, on November 26, 1876, in the city of Corsicana.
Upon the application of defendant, a change of venue was granted to Freestone County. At the April term, 1878, of the District Court of Freestone County, the case was tried ; the jury found the defendant guilty of murder in the second degree, and assessed his punishment at seven years’ confinement in the penitentiary. A judgment was entered in accordance with the finding of the jury; and it is to reverse the judgment that this appeal is presented.
The statement of facts shows that Emma Dailey was shot in the city of Corsicana, in Navarro County, about the time charged in the indictment, between seven and eight o’clock at night, near the front door of her own house, the ball entering her side and passing through her body. She lived five or six days after she was shot, and died from the effect of the wound.
Three propositions were insisted upon by the defense in the court below, and are now in this court, to wit: first, [285]*285that defendant did not fire the shot which caused the death of Emma Dailey; second, that if defendant did fire the fatal shot, he did not intend to kill the deceased, and the killing was accidental; third, that the defendant was so intoxicated from the use of liquor at the time, he was incapable of committing the crime of murder.
The record shows that the defendant, in company with Ben Hamilton and J. P. Stately, was in the city of Corsicana on November 26, 1876, drinking. Late in the evening they got their horses from the rack where they were hitched, and took them to Collins’ livery-stable. Hamilton and Stately engaged in a game of cards, up stairs over the stable, Stately playing, for Brown, against Hamilton. Hamilton and Stately got into a row about the game, and Stately attempted to draw his pistol. Brown took the pistol from him, and kept it. After this, defendant invited the company— the witness Blackwell then being present with them — to go down the street to Fryer’s saloon and take a drink. The next building south of Collins’ livery-stable is Mollie Tompkins’, the next is a vacant house, and the next is the house in which Emma Dailey lived. Fryer’s saloon was still further south, on the next block.
The statement of facts directly shows that Mollie Tompkins and Emma Dailey were lewd women, and that defendant knew Emma Dailey and her house. On going down to Fryer’s saloon, in passing the house of Emma Dailey, defendant stopped, knocked at the door, and asked to be admitted; and, upon being refused, said he would kick the door down. The four went on to Fryer’s saloon. While there, the defendant had a pistol in his hand, and the witness Blackwell testified that defendant there said “he had done everything except steal a wagon and kill a woman, and that he would not be satisfied unless he killed somebody before he went home.”
After leaving Fryer’s saloon, these parties returned to Col[286]*286lins’ livery-stable and stopped in front of the stable, some of them taking seats on a platform north of the stable-door. About this time Emma Dailey came out of the house of Mollie Tompkins, and was going in the direction of her own house, when a pistol was fired by some one of the party at Collins’ stable, and Emma Dailey was shot and mortally wounded. She was then about sixteen steps from Collins’ stable. The moon was shining; one of the witnesses says it was a bright moonlight night; another, that the moon was shining, but not very brightly. The defendant was, shortly after this, arrested by a city policeman, some forty or fifty steps from where deceased was shot. This policeman testified that defendant, when arrested, was considerably under the influence of liquor, “ but not too drunk, in witness’ opinion, not to know what he was doing; he would call him about half drunk.”
The evidence, we think, is sufficient to show that defendant shot and killed the said Emma Dailey.
Upon the question as to who fired the fatal shot, the jury were properly instructed that this was a question for them to consider, and that if they had a reasonable doubt of the defendant’s having done so, they should acquit him, and look no further into the case.
The first error assigned by the defendant is that the court erred in the following portion of the charge, to wit: “ When the fact of killing has been clearly established, and it has not been shown to be the result of accident, or to have been done under such circumstances as will, in law, mitigate, excuse, or justify the act, the law, in such case, implies malice without further proof, and makes such killing murder.” The defense says that the errors in this instruction are:
“1. That it makes malice a presumption of law from a given fact—the killing alone — instead of an inference of [287]*287fact, which it always and necessarily is, as to its determination in any real case.
“2. It shifts the burden of proof upon the defendant at a given point — the isolated fact of killing — when, by law, it is never shifted, and when in this case there were various facts and circumstances in evidence in connection with the killing, and some even testified to by the State’s witnesses, which tended to refute the presumption or inference against the defendant, and such charge in its application to this case was calculated to mislead the jury, in causing them to find the defendant guilty of murder, without looking further to the proof before them than the fact of the killing, unless it was shown, on the part of the defendant, that the killing was the result of accident, or was done under circumstances that would, in law, mitigate, excuse, or justify the act; and in that such portion of the charge in reference to circumstances of mitigation, when taken in connection with other portions of the charge on this question, restricted the jury to the consideration of excessive drunkenness as a mitigation of murder in the first degree to murder in the second degree only, and to negligent homicide, and in this respect is not the law as applicable to the facts of this case.
“ 3. That it is a charge upon the weight of evidence,” etc.
The counsel for the defendant has discussed this branch of his case with unusual ability and research. We do not concur with him in believing that there is any error in this portion of the charge of the court. The court, in its instructions to the jury, defined murder in the language of the statute. Pasc. Dig., arts. 2266, 2267. The jury were properly instructed by the court, in case of homicide, under what circumstances the law would mitigate, excuse, or justify the act. It gave them the legal definition of malice, and the distinction between express and implied malice.
[288]*288- A careful examination of the entire charge is necessary to understand how fairly and clearly the jury were instructed upon every legal question that could arise on the facts, so that they were able to find an intelligent verdict.
Our Supreme Court, in the case of Farrer v. The State, 42 Texas, 265, says: “ It is a familiar axiom that every one is presumed to understand the probable result, of his act. And when an unlawful act is clearly shown to have been done, it is for the defendant to show facts which mitigate, excuse, or justify it, so that a reasonable doubt, at least, may arise on the entire evidence in the case as to his guilt. Hence, when the killing is proved, and it is not shown to have been done under sudden passion, induced by adequate cause, or under circumstances which excuse or justify it, such killing must .be regarded as voluntary and designed, and, therefore, with malice, which the law-imputes to such homicide. * * * But while the law implies malice on proof of voluntary homicide, it does not impute express malice. This is an inference, not of law, but-a question of fact, consisting of intention dependent upon the state of the mind. And to warrant a conviction of murder in the first degree, it must be proved, like any other fact in the case, by such evidence as is reasonably sufficient to satisfy the jury of-its existence. The evidence by which this inward intent is to be shown consists of external circumstances — such as the acts or declarations of the party at or nearly connected with the killing, manifesting the state and condition of the mind, and the nature and extent of its design.”
Among the cases cited by the defense is that of Perry v. The State, 44 Texas, 473. In that case the portion of the charge of the court which was held to be error is as follows, to wit: “That the law implies malice in case of unlawful killing by means calculated to produce death ; and in such case the burden of proof is on the defendant, if he [289]*289would reduce the offense to a lower grade than murder in the second degree.” It was that portion of the instruction which told the jury that the burden of proof is on the defendant, etc., which the court held erroneous. The court says : “ That part of the charge which speaks of the burden of proof being on the defendant is not strictly correct. In the case of Hull v. The State, Galveston term, 1875, this subject was fully considered, and after a careful examination of the statutory provisions bearing upon it, and a review of the leading authorities, the conclusion is arrived at that the burden of proof is not on the defendant in a criminal case in the sense in which it is understood to rest on the defendant in a civil suit. In a criminal prosecution, when the accused relies on the plea of not guilty, admitting nothing, the onus is on the State to overcome the legal presumption of his innocence, and the question of his guilt is to be decided from the whole evidence, without pausing to inquire whether it was introduced by him or the State. Although the evidence should show an unlawful killing by means calculated to produce death, if the attendant circumstances leave it doubtful whether the killing was not manslaughter, then the rule as to the burden of proof does not apply, and the defendant cannot be convicted of murder.”
In the case at bar, all the circumstances attending the homicide were disclosed in the evidence, and there is no evidence tending to prove that the killing was manslaughter, or to excuse or justify the homicide. The authorities undoubtedly support the proposition that the law presumes malice from the mere fact of the homicide. 4 Bla. Com. 201. There are a number of authorities of the highest respectability, and many of them are cited in the brief of the counsel for the defendant, which hold that this presumption is not applicable when the facts and circumstances attending the homicide are disclosed in the evidence, so as to draw a conclusion of malice, or want of malice, [290]*290as one of fact from the evidence; that presumptions of this class are intended as substitutes in the absence of direct proofs, and are in their nature indirect and constructive ; that the best evidence of the state of mind attending any act is what was said and done by the person whose motive is sought for.
There is much force in this line of authorities. In the present case, however, the instruction complained of does not, we think, authorize the jury to imply malice from the abstract fact of killing, or that, the homicide being proved, it is incumbent upon the prisoner to prove all the circumstances of mitigation, excuse, or justification. On the contrary, the court charges the jury that when the fact of killing has been clearly established, and it has not been shown to be the result of accident, or to have been done under such circumstances as will, in law, mitigate, excuse, or justify the act, the law, in such cases, implies malice without further proof, and makes such killing murder. The court, in effect, in this charge told the jury that they should look to all the facts and circumstances attending the homicide, as disclosed by the evidence; and if they disclosed no facts or circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the act, the law, in such cases, implies malice, and makes such killing murder. We are unable to discover any error in this instruction calculated to injure the rights of defendant.
The court also properly instructed the jury upon the law of negligent homicide, and upon drunkenness of the defendant in cases of homicide, as laid down by this court in the case of Colbath v. The State, 2 Texas Ct. App. 391. The same case has again been before this court during its present term, and the opinion of the court on the general doctrine of drunkenness as an excuse for crime in cases of homicide is fully expressed, and the question discussed at greater length. Ante, p. 76.
[291]*291After a careful examination of the authorities, both English and American, we have held that voluntary intoxication is no excuse for crime; that it will not reduce an act which in a sober man would be murder to manslaughter. The mere fact of the accused being drunk will not mitigate the criminality of a voluntary killing, below the grade of murder. In all cases where the question is between murder in the first and murder in the second degree, the fact of drunkenness may be proved, to shed light upon the mental status of the offender, and thereby enable the jury to determine whether or not the killing resulted from a deliberate and premeditated purpose.
If the evidence had satisfied the jury that the defendant unlawfully shot at and killed Emma Dailey, and that he was very drunk when he did it, or so much so that if he had any purpose to take the life of the deceased, such purpose had its inception, and was carried into effect, when in such a state of mental confusion from drink as rendered him incapable of cool reflection, and of forming a design to take life, the killing, under such circumstances, would be murder of the second degree, and they should so say by their verdict.
The court charged on the doctrine of reasonable doubt as between the degrees of murder, and as applicable to negligent homicide; also, as to who did the killing. The court further charged the jury that “ the.defendant is presumed to be innocent until his guilt is established by legal evidence to your satisfaction; and in case of reasonable doubt as to his guilt, he is entitled to be acquitted.” This is in the language of article 3105, Paschal’s Digest. We believe that the charge of the court, taken as a whole, presented a very fair, elaborate, and correct exposition of the law as applicable to the case.
It is urged — and for the first time in this court, so far as the record shows — that the witness Hamilton was an accom[292]*292plice, and that the law requiring such testimony to be corroborated was not given to the jury. We do not believe that the evidence required such a charge. None was asked on this or any other point, and no exception was taken to the failure of the court to give such charge, or to the charge as given. We are clearly satisfied in our minds that the failure of the court to give such an instruction was not calculated to injure the rights of the accused. The evidence supports the verdict and judgment.
Believing that the defendant has had a fair and impartial trial, and been legally convicted, the judgment must be affirmed.
Affirmed.