Winkler, J.
The appellant was convicted of an assault with intent to murder one Henry Hodges, alleged to have been committed on March 6, 1878.
On the trial below, the judge presiding gave to the jury the following charge on the subject of. circumstantial evidence: “The burden of proof is upon the State to establish by evidence the guilt of defendant. This may be done by either positive or circumstantial evidence. The evidence in this cause being circumstantial, you are charged that the [55]*55law is, that, to warrant a conviction, the circumstances in evidence must be of such a conclusive and satisfactory character as to establish the guilt of the defendant to a moral certainty, and to exclude every reasonable hypothesis consistent with his innocence. * * * That is to say, if the jury can explain or account for the facts and circumstances in evidence before them in any reasonable way consistently with the innocence of defendant, they must do so, and acquit. On the other hand, if the jury find that the facts and circumstances in evidence before you cannot be accounted for upon any reasonable grounds consistently with the innocence of defendant, then it is your duty to convict. If the facts and circumstances in evidence are such as to establish the guilt of the defendant with a degree of certainty sufficient to satisfy the mind of a man of ordinary understanding, and so to convince him that he would act upon that conviction in matters of the highest importance to his own interest, the jury would be warranted in finding him guilty. Satisfactory evidence is such as ordinarily satisfies an unprejudiced mind beyond a reasonable doubt.” Charges on this subject were asked by the counsel representing both the State and the accused, both of which were refused by the court.
We are of opinion that this charge of the court sufficiently informed the jury as to the certainty required to be shown by circumstantial evidence in order to warrant a conviction ■on this character of testimony, especially when considered in connection with those portions of the charge of the court which immediately follow the paragraph set out above.
. The judge having plainly stated “the law of the case,” as it was his duty to do agreeably to the provisions of the Code of Criminal Procedure, art. 595, it was not required •of him to do more, and hence he did not err in refusing to give the additional instructions asked; not because the ■charges asked were or were not correct enunciations of the law, but because they were unnecessary under the circumstances.
[56]*56There was no such error in the charge of the court, or in refusing the charges asked, as was calculated to prejudice-the rights of the accused. On the contrary, the charge-fairly submitted to the consideration of the jury the only question of moment in controversy, to wit, Was the accused the person who fired the shot? There is no room for controversy that some one attempted to shoot the assaulted party, through a window, at night, and as little room for doubt that the shot was fired with intent to murder.
Five bills of exceptions were taken to as many different rulings of the court on the trial below. The first bill of exceptions raises a question of practice under sect. 22 of the jury law of 1876. The section, among other things, directs that, in case of a criminal trial in the District Court, after the proper number of names shall have been drawn in the manner required, and such names have been entered, as-drawn, on two slips of paper, the slips having the names drawn shall be handed, “ one to the prosecuting attorney, and the other to the defendant, or his attorney; from which, * * * in a criminal case, each may strike a number of names equal to the number of peremptory challenges allowed them by law.” The list, after the striking has been done, is to be returned to the clerk, who shall, if in the District Court, “ call the first twelve names not erased ; ” and these twelve compose the jury to try the case. By this process of striking, each party avails himself of standing aside such of the persons whose names appear on the list furnished him by the clerk as he would challenge peremptorily, to the extent of the number of peremptory challenges allowed by law in the particular case for the trial of which the jury is then being formed.
The bill of exceptions recites that, “ when the counsel for the defendant was called upon to make his challenges, * * * he moved the court to permit him to look at the list of jurors from which the counsel for the prosecution had struck the names of jurors challenged by the [57]*57State, that he (defendant) might be advised of the challenges made by the State before he was called upon to challenge.” This request was refused by the court, as the bill of exceptions shows. In this ruling we find no error; if for no other reason, because the statute has not so provided. Counsel had the means of ascertaining the State’s challenges, or rather who had not been challenged, by the call of the names remaining after the striking had been completed, for the names called were necessarily of those remaining on the list after each party had struck off his peremptory challenges ; and we cannot discover any injury which could result to the accused by withholding from him the names of the offered jurors challenged by the State. Still, whilst we deem the matter of but little moment any way, we are unable to see any good reason for withholding this information, as the State ought not to desire, and neither party should be permitted, to obtain any undue advantage in forming a jury in any case; and it is not intimated that this was attempted in the present case.
Bills Nos. 2 and 3 relate to the rulings of the court upon the evidence ; upon which we do not deem it necessary in this opinion to say more than that in the rulings complained of we find no material error.
Bill of exceptions No. 4, as stated by counsel, was not signed; but the judge, instead of signing the bill of exceptions, or refusing to sign it, makes a statement, in which he says : “ The above paper [referring to the paper prepared by counsel] having been presented to me for approval as a bill of exceptions, I submit, at the request of defendant’s counsel, this statement.” From this statement we gather that, some time during the progress of the trial, the grand jury, having finished their labors for the term, appeared in court, and having returned into court all the indictments found by them, “ announced that they had no further business before them, and were ready to be discharged, and asked to be allowed to make an oral-report through the [58]*58county attorney. Among other things, they referred to the small number of bills found, and to the obvious decline in the amount of crime committed in the county. The court, in reply, remarked that this was owing, no doubt, in a large degree to the operation of the new jury law, etc.; and this was seen in the greater number of convictions for capital offences, as shown by cases affirmed by the Court of Appeals.” The judge proceeds as follows : “ The court made .a few other commonplace remarks to the jury, and discharged them. No exception was saved by the defendant, and no objection made, or notice taken whatever of it; and the court did not conceive that it could be suspected that these remarks could influence in any manner the verdict in this or any other cause pending in court, until two days after, when this cause was assigned as a ground for a new trial by the defendant.”
Free access — add to your briefcase to read the full text and ask questions with AI
Winkler, J.
The appellant was convicted of an assault with intent to murder one Henry Hodges, alleged to have been committed on March 6, 1878.
On the trial below, the judge presiding gave to the jury the following charge on the subject of. circumstantial evidence: “The burden of proof is upon the State to establish by evidence the guilt of defendant. This may be done by either positive or circumstantial evidence. The evidence in this cause being circumstantial, you are charged that the [55]*55law is, that, to warrant a conviction, the circumstances in evidence must be of such a conclusive and satisfactory character as to establish the guilt of the defendant to a moral certainty, and to exclude every reasonable hypothesis consistent with his innocence. * * * That is to say, if the jury can explain or account for the facts and circumstances in evidence before them in any reasonable way consistently with the innocence of defendant, they must do so, and acquit. On the other hand, if the jury find that the facts and circumstances in evidence before you cannot be accounted for upon any reasonable grounds consistently with the innocence of defendant, then it is your duty to convict. If the facts and circumstances in evidence are such as to establish the guilt of the defendant with a degree of certainty sufficient to satisfy the mind of a man of ordinary understanding, and so to convince him that he would act upon that conviction in matters of the highest importance to his own interest, the jury would be warranted in finding him guilty. Satisfactory evidence is such as ordinarily satisfies an unprejudiced mind beyond a reasonable doubt.” Charges on this subject were asked by the counsel representing both the State and the accused, both of which were refused by the court.
We are of opinion that this charge of the court sufficiently informed the jury as to the certainty required to be shown by circumstantial evidence in order to warrant a conviction ■on this character of testimony, especially when considered in connection with those portions of the charge of the court which immediately follow the paragraph set out above.
. The judge having plainly stated “the law of the case,” as it was his duty to do agreeably to the provisions of the Code of Criminal Procedure, art. 595, it was not required •of him to do more, and hence he did not err in refusing to give the additional instructions asked; not because the ■charges asked were or were not correct enunciations of the law, but because they were unnecessary under the circumstances.
[56]*56There was no such error in the charge of the court, or in refusing the charges asked, as was calculated to prejudice-the rights of the accused. On the contrary, the charge-fairly submitted to the consideration of the jury the only question of moment in controversy, to wit, Was the accused the person who fired the shot? There is no room for controversy that some one attempted to shoot the assaulted party, through a window, at night, and as little room for doubt that the shot was fired with intent to murder.
Five bills of exceptions were taken to as many different rulings of the court on the trial below. The first bill of exceptions raises a question of practice under sect. 22 of the jury law of 1876. The section, among other things, directs that, in case of a criminal trial in the District Court, after the proper number of names shall have been drawn in the manner required, and such names have been entered, as-drawn, on two slips of paper, the slips having the names drawn shall be handed, “ one to the prosecuting attorney, and the other to the defendant, or his attorney; from which, * * * in a criminal case, each may strike a number of names equal to the number of peremptory challenges allowed them by law.” The list, after the striking has been done, is to be returned to the clerk, who shall, if in the District Court, “ call the first twelve names not erased ; ” and these twelve compose the jury to try the case. By this process of striking, each party avails himself of standing aside such of the persons whose names appear on the list furnished him by the clerk as he would challenge peremptorily, to the extent of the number of peremptory challenges allowed by law in the particular case for the trial of which the jury is then being formed.
The bill of exceptions recites that, “ when the counsel for the defendant was called upon to make his challenges, * * * he moved the court to permit him to look at the list of jurors from which the counsel for the prosecution had struck the names of jurors challenged by the [57]*57State, that he (defendant) might be advised of the challenges made by the State before he was called upon to challenge.” This request was refused by the court, as the bill of exceptions shows. In this ruling we find no error; if for no other reason, because the statute has not so provided. Counsel had the means of ascertaining the State’s challenges, or rather who had not been challenged, by the call of the names remaining after the striking had been completed, for the names called were necessarily of those remaining on the list after each party had struck off his peremptory challenges ; and we cannot discover any injury which could result to the accused by withholding from him the names of the offered jurors challenged by the State. Still, whilst we deem the matter of but little moment any way, we are unable to see any good reason for withholding this information, as the State ought not to desire, and neither party should be permitted, to obtain any undue advantage in forming a jury in any case; and it is not intimated that this was attempted in the present case.
Bills Nos. 2 and 3 relate to the rulings of the court upon the evidence ; upon which we do not deem it necessary in this opinion to say more than that in the rulings complained of we find no material error.
Bill of exceptions No. 4, as stated by counsel, was not signed; but the judge, instead of signing the bill of exceptions, or refusing to sign it, makes a statement, in which he says : “ The above paper [referring to the paper prepared by counsel] having been presented to me for approval as a bill of exceptions, I submit, at the request of defendant’s counsel, this statement.” From this statement we gather that, some time during the progress of the trial, the grand jury, having finished their labors for the term, appeared in court, and having returned into court all the indictments found by them, “ announced that they had no further business before them, and were ready to be discharged, and asked to be allowed to make an oral-report through the [58]*58county attorney. Among other things, they referred to the small number of bills found, and to the obvious decline in the amount of crime committed in the county. The court, in reply, remarked that this was owing, no doubt, in a large degree to the operation of the new jury law, etc.; and this was seen in the greater number of convictions for capital offences, as shown by cases affirmed by the Court of Appeals.” The judge proceeds as follows : “ The court made .a few other commonplace remarks to the jury, and discharged them. No exception was saved by the defendant, and no objection made, or notice taken whatever of it; and the court did not conceive that it could be suspected that these remarks could influence in any manner the verdict in this or any other cause pending in court, until two days after, when this cause was assigned as a ground for a new trial by the defendant.”
We venture the remark that the oldest practitioner in the courts of Texas cannot remember when the practice did not ■obtain of permitting the grand juries to come into court to be discharged, when through their labors, and of being complimented from the bench when they had faithfully performed their duties. This time-honored custom we are not inclined to interrupt, and we are unable to see that its observance is at all likely to prejudice the rights of litigants generally; and in this particular case we have not seen that it had, or was likely to have had, any such effect. There was no error in this action of the court, to the defendant’s prejudice.
It appears from the fifth bill of exceptions that, after the defendant had closed his testimony, the court permitted the counsel for the State to introduce a witness to prove, as he stated, “ a piece of original testimony, that he did not know ■existed before.” This the court permitted, over objections by the defendant, informing him that he would be allowed to introduce such evidence, in response to the new matter Introduced, as he might desire. In this action of the court [59]*59there was no error. The Code of Criminal Procedure, art. •581, provides that “the court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice.” Pasc. Dig., art. 3046.
The authority conferred to introduce testimony at an irregular time must be largely confided to the discretion of the judge as to whether the testimony is necessary for the ■due administration of justice, and will not be revised on .appeal except in a clear case of abuse of that discretion.
The several grounds of the motion for a new trial are ■substantially the same as the errors complained pf in the ■several bills of exception we have considered, with the additional ground that the verdict is contrary to the law and the ■evidence. We are of opinion there was no good cause shown for the granting of a new trial.
It is a matter of regret that the appellant has not been represented by counsel in this court; yet we have not only ■considered the case as made by the bills of exception and the causes alleged for a new trial, but have examined the whole •case as presented by the record, and fail to discover other than that the appellant has had the benefit of a fair and impartial trial; that, throughout, the court carefully guarded nil the rights of the accused; and that he has been adjudged guilty of what appears to us a vile attempt at assassination.
The judgment of the District Court is affirmed.
Affirmed.